The Judgement on Section 377: Grant Of Partial Freedom To the LGBTQI Community

A 5 member Supreme Court (SC) bench, headed by the Chief Justice, Dipak Misra, on 6^th Sept, 2018,  decriminalized” homosexuality, by an unanimous verdict, paving the way for the LGBTQ (Lesbian, Gay, Bisexual, Transgender, Queer) community to lead a life free of discrimination, persecution, harassment & extortion; blackmailers’ included law enforcement authorities, forcing the community to live incognito or in a closet. The judgement opined that homosexuality is not a mental disorder – as argued by certain petitioners – but is a natural biological condition; likewise, the apex court averred that society cannot dictate sexual relationships - between consenting adults – which are wilful & informed. For those who argued on “immorality” of a miniscule minority compromising the social order of the majority, the judgement reminded that constitutional morality out-weights public morality even if it be the majoritarian view.  India, thus, joins the league of nations that recognizes gender identity & sexual orientation & the judgement is likely to have a transnational impact.

The judgement “read down” section 377, of the Indian Penal Code, but did not strike it down from the statute books. “Bestiality” – sex with animals - & “Sodomy” – non- consensual oral or anal sex - still continue as criminal acts; non-consensual vaginal intercourse, that comes under the ambit of Sec 375, dealing with rape, still stands. Minors are further protected under the POSCO Act (Protection of Children from Sexual Offenses). The judgement is, however, silent on civil rights – Marriage, divorce, Adoption, Inheritance etc. - & it will be interesting to watch Parliament & the Judiciary navigate the tricky slopes going ahead.

The SC judgement avoided the issue of civil rights, perhaps, as a consequence of the stand taken by the BJP govt., vide an affidavit submitted by Additional Solicitor General, Tushar Mehta, that the Union of India would subscribe to the wisdom of the honorable court, on the constitutional validity of Sec 377 to the extent that it applies to “consensual acts of adults in private”. The RSS stand against “Gay marriage” lends credence to this assessment.

Section 377 deals with “carnal acts against the order of nature”; in other words any act which does not lead to procreation, like “oral sex” or “anal sex” is proscribed.  Even heterosexual couples indulging in such acts, are deemed criminals under the act. But with the Puttaswamy vs GOI(Government of India) judgement, in 2017, that held “Privacy” as a fundamental right under Article 21 – Right to Life & Liberty -  the same stands corrected & any of those aforementioned acts conducted in privacy, if wilful & informed, is not deemed a criminal offence any longer.  In the same judgement Justice Chandrachud held Article 377 as “unsustainable” since right to privacy & the protection of sexual orientation lie at the core of fundamental rights guaranteed by articles 14 (Right to Equality), 15 (Right against discrimination) & 21(Right to Life & Liberty) of the constitution” paving the way for the current judgement.

Deja Vu

 It was a moment of déjà vu for Gay rights activists, since Delhi High Court’s Justice AP Shah & Murlidhar, delivered a similar sounding, progressive judgement, in 2009, only to see it reversed, in 2013, by a 2 member bench of the Supreme Court of Justice GS Singhvi & SJ Mukhopayhaya. Petitioner, Suresh Kumar  koushal, had appealed against the Delhi HC judgement – on the grounds that homosexuality  is “immoral” & “threatens national security” & was paradoxically, supported by various Christian & Muslim religious outfits; in a polarized India, religious fundamentalists, otherwise at loggerheads, joined hands to deny LGBTQ community their rights.

While the SC judgement left it to the discretion of Parliament to delete the provision,  political invertebrates could not arrive at a consensus on the issue; a private member bill introduced by MP(Member Of Parliament), Shashi Tharoor, to decriminalize homosexuality, was voted out in the Lok Sabha, in 2015 A curative petition was than submitted by the Naz Foundation, arguing that the SC Judgement wrongly held that “ a miniscule fraction of the population cannot claim fundamental rights” & is now rewarded with a revised pronouncement.

The NALSAR judgement by the SC, in 2013 gave transgenders the right to be treated as the “third gender” in line with India’s obligations to international treaties & Yogyakarta principles. Reading down of sec 377 was, in a way, an extension of the same reasoning of progressive jurisprudence,

Brief History

Section 377, is of a colonial vintage – year 1861 to be precise – a reflection of Victorian prudishness. Bibek Debroy, in an article in the Indian Express, avers that Section 377 was liberal “for its times” since the section reduced punishment from a death sentence – under the English Buggery Act 1553 - to a maximum of life imprisonment. Oscar Wilde & Alan Turing were some of the beneficiaries of the changed statute. 

Indian society is replete with sexual permissiveness as reflected in the Kamasutra & Natyashastra texts,  Puranic stories of men becoming women & vice versa, Khajuraho sculptures etc. Medical texts like Charak Samhita too have references to queers. Devdutt Patnaik opines that the presence of over 50 words for non-heteronormative genders and sexualities for the past 3000 years, since Vedic times, in Sanskrit, Prakrit and Tamil, reveals a rejection of binaries. Customs like invitation to transvestite “hijra” members to bless a newly born, indicate social inclusivity which, unfortunately, turned regressive due to a colonial legal intervention & India refused to do away with it despite England revoking the statute, in 1967 & allowing gay marriages in 2013, with many former British colonies followed suit. In Britain, a Royal, Lord Mountbatten, is planning to marry his partner, James Coyle, next summer, with his former wife doing the honours, of giving him away, setting an new precedence.

Way Forward

Many people fear revealing their LGBTQI identity anticipating mockery or ostracisation from family & society; they endure the ignominy of participating in rituals & therapies to cure the so called malady; after all, the process is the punishment. With the current judgement not only ensuring protection but also eliminating persecution from law, the onus is now on civil society along with NGOs’ to lead the onerous task of transmitting the message. Psychological counselling, for parents, to accept their kids for what they are is important since they form the most important support base for their progeny. Education in schools to look beyond binaries would need a change in the education policy & purists would scoff at such a suggestion. Making schools & workplaces inclusive - avoiding discrimination & prejudice - by launching anti bullying programs would be an acceptable alternative. Affirmative action, as per Justice AP Shah, is needed to ensure a frictionless integration of this community into the society.

The Naz Foundation filed a petition in the Delhi High Court to decriminalize homosexuality, in 2001, & it took 17 long years, of a topsy turvy battle, to bear fruition; granting civil rights to the LGBTQI community, could pass through a, similarly, torturous process. Meanwhile, the long walk to ultimate freedom continues.