On Feb 2, Supreme Court Should Do The Right Thing: Rethink Section 377

29/01/2016 1:14 PM IST | Updated 15/07/2016 8:26 AM IST
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NEW DELHI, INDIA - NOVEMBER 29: A LGBT rights activist holds rainbow flag during Delhi Queer Pride March from Barakhamba Road to Jantar Mantar on November 29, 2015 in New Delhi, India. Organizers said that while the gay pride parade celebrated the gains India's LGBT community has made in recent years, they also wanted to highlight the continuing discrimination it faces. The Delhi Queer Pride Committee also demanded the repeal of Section 377 of the Indian Penal Code, which criminalizes homosexual acts. (Photo by Raj K Raj/Hindustan Times via Getty Images)

On 2 February, the Supreme Court will decide whether it wants to rethink its decision of keeping Section 377 in the statute books. The law effectively renders as “criminal” all lesbians, gays, bisexuals and the transgendered.

When the honourable judges sit down to think about this, they may want to ponder over the plight of a 15 year old boy in Agra who was ‘caught’ by a neighbour in moments of intimacy with a male friend. Teased about this, he set himself afire earlier this month, sustaining 40% injuries.

It would be missing the woods for the trees to say that this was a case of social prejudice, and had nothing to do with Section 377. The illegality of homosexuality legitimises social prejudice against it.

Overturning the Delhi High Court’s reading down of Section 377, the Supreme Court had in 2013 said that it was the Parliament’s job, and not that of the judiciary, to decide the issue. That was an abdication of the Supreme Court’s responsibility to safeguard fundamental rights of all citizens. It is not surprising that a majoritarian parliament does not want to decriminalise homosexuality. When one parliamentarian, Shashi Tharoor, brought in a private member’s bill to read down Section 377, his colleagues jeered loudly at him, wondering if he needed homosexuality decriminalised for himself.

The Supreme Court had in 2013 said that it was the Parliament’s job, and not that of the judiciary, to decide the issue. That was an abdication of the Supreme Court’s responsibility to safeguard fundamental rights of all citizens.

The Supreme Court recently banned Jallikattu even though the political class favoured it. Striking down the NJAC law for appointment of judges, the Supreme Court expressed concerns over its potential misuse by the political class. Similarly, Section 377 is misused against LGBTs for harassment and extortion. “Why do you think it is illegal to be gay in India?” was a question put to a 21 year old student at the Indian Institute of Science in Bangalore in a public notice in October last year. The person who put out the notice demanded Rs 5,000 to not out the gay student.

Supreme contradictions

The Supreme Court struck down Section 66A of the IT Act on the grounds that its wording was vague, that it had no due process and was open to arbitrary misuse and harassment, resulting in a chilling effect on free speech. The “void of vagueness” that plagued 66A is also found in Section 377 of IPC, as Ananth Padmanabhan has argued.

supreme court of india

The Supreme Court Of India.

Recognising the transgendered as the third gender in 2014, the Supreme Court judgement acknowledged the role played by Section 377 in their harassment and marginalization. This was in contrast to the 2013 judgement re-criminalising homosexuality, where the Supreme Court did not buy the point about harassment of the LGBT community.

Yet, in its judgement on the rights of the transgendered, the Supreme Court refused to follow the logic and read down 377. The judgement said, “A Division Bench of this Court... has already spoken on the constitutionality of Section 377 IPC and, hence, we express no opinion on it since we are in these cases concerned with an altogether different issue pertaining to the constitutional and other legal rights of the transgender community and their gender identity and sexual orientation.”

But it is not a different issue. The issue is the same: a majority of society is heterosexual and has decided to declare all sex other than the missionary position between man and woman as illegal, punishable with a fine and up to 10 years in prison. Why should this law be applied to consenting adults, whether in theory or practice? If the parliament were to ban heterosexual sex, would the Supreme Court say it is the parliament’s domain? Or would it say it is a violation of fundamental rights?

A majority of society is heterosexual and has decided to declare all sex other than the missionary position between man and woman as illegal, punishable with a fine and up to 10 years in prison.

Passing the buck

After the Delhi High Court de-criminalised gay sex, Indian society stopped pretending homosexuality didn’t exist. When in 2013 the Supreme Court re-criminalised it, a large number of people spoke up against Section 377. Surprisingly, this included many politicians and political parties, with the exception of the Bhartiya Janata Party. Lately, even BJP politicians have spoken up against Section 377.

Finance minister Arun Jaitley, himself a lawyer of repute, recently said the Supreme Court should reconsider its 2013 judgement. The Modi government’s current position on Section 377 is to wait for the Supreme Court to decide on the curative petition.

While the Supreme Court judgement said it was the parliament’s job to decide on 377, the political class has been urging the Supreme Court to do it. There were very few who had opposed the 2010 de-criminalisation by the Delhi High Court. There is no great public demand for criminalising homosexuality, but there is no great public demand to read down Section 377 either. That’s because the majority is not affected by it, and the parliament has no political incentive to be kind to sexual minorities.

While the Supreme Court judgement said it was the parliament’s job to decide on 377, the political class has been urging the Supreme Court to do it.

A gay judge?

Soon after his retirement, Supreme Court judge Vikramjit Sen had advocated scrapping Section 377. Commenting on the NJAC bill that the SC struck down, Justice Madan B Lokur had remarked that the government may not appoint an openly gay judge .

These remarks by SC judges have been in contrast to 2013, when one of the SC judges hearing the case had expressed surprise that eminent writer Vikram Seth was gay. Justice Singhvi had observed, “But for this list (presented by lawyers) we would not have known that Vikram Seth was homosexual. I enjoy his work but did not realise he was of different orientation. Ismail Merchant, nobody would know about.”

The forthcoming film Aligarh, based on the real life story of an academic who was outed by invading cameras against his wishes, tells you why we don’t have more openly gay public figures, including judges. It’s because LGBT individuals are forced to live lives of secrecy, fear and shame. As the guardian of the Constitution that gives all Indians fundamental rights of life, dignity and privacy, the Supreme Court must ask itself if it is doing justice to sexual minorities.

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