Supreme Court offers sliver of hope for gay rights
SC's decision to hear in open court curative petitions on Section 377 is an opportunity for it to rectify the mistake of re-criminalising homosexuality in the country
New Delhi: The curative petition, which the Supreme Court heard on Tuesday against its decision on Section 377 of the Indian Penal Code, was the last legal stop available to gay-rights groups and their supporters in India. A legislative change is considered unlikely at this time—despite support for decriminalization from key members of the government and opposition—because the country, despite growing calls for gay sex to be decriminalized, remains deeply conservative. Although prosecutions under Section 377 are rare, it is often used by the police to harass gays and lesbians.
The curative petition is a fairly new concept in the Indian legal system. It is the last judicial resort available for redressal of grievances in court which is normally decided by judges in-chamber. It is only in rare cases that such petitions are given an open-court hearing.
The Supreme Court’s decision to hear in open court curative petitions on Section 377 is an opportunity for it to rectify the mistake of re-criminalising homosexuality in the country.
Typically, judges decide a curative petition after discussing it among themselves through a procedure called “hearing by circulation”. The fact that the top court has departed from established practice of not hearing oral submissions on curative petitions is perhaps a judicial acknowledgement of changing social realities on the contentious issue.
However, it is possible for the five-judge bench to whom the petition has been referred to uphold Section 377, and that would unfortunately be as durable as a strike-down. As it deliberates, it is to be hoped that the court will be conscious that while it is the defender of the law, its fundamental duty is to the people and the ideals of democracy, said an Indian Express opinion piece.
The Supreme Court must also realise that acts of prejudice which provoke hate crimes and push people towards death need to be redeemed by the law, says a piece in The Wire, which discusses Section 377 along with Aligarh, Hansal Mehta’s film on the death of a gay Aligarh Muslim University professor, and the Curious Case of the professor Shrinivas Ramchandra Siras, an author and linguist in Marathi literature who was found dead at his residence on 8 April 2010.
The move was widely welcomed by activists as “hope of upholding the democracy” in the country.
“I am happy that the court has referred the matter to a five-judge bench. Now, the court is going to look at the constitutional arguments to decriminalise homosexuality, hopes have been raised that if the petition has been accepted that means they see some merit in it. Let’s hope this is the last leg of the fight,” said LBGT activist and Naz Foundation director Anjali Gopalan.
Welcoming the order, transgender rights activist Laxmi Narayan Tripathi, said: “Actually the court could have struck it down and asked the government to react on it to assert that democracy prevails in the country and the right of expression, right to life and dignity is still there. But it is interesting how the matter has been referred to a five-judge bench.”
The government, however, has not formulated any view on the issue so far, according to Union minister Venkaiah Naidu. Reacting to the apex court referring the issue to a five-judge constitution bench, the minister said, “It is a humane issue, we have to study various aspects and take a final view. The debate is on. The government has, to my knowledge, not formulated any final view, but it is now before the court, let us await what is going to happen.”
Expressing happiness over the positive approach by the apex court, Congress leader Shashi Tharoor said, “The Supreme Court has actually breathed some hope into the cause of redressing the denial of rights of so many.”
Former Union home minister P. Chidambaram said, “I am happy that an error is being corrected. This is only the first step. I look forward to the day when the SC will uphold the judgment of the Delhi high court.”
Gay prince of Rajpipla, Manvendra Singh Gohil, who has been at the forefront of the LGBT movement in the country, on Tuesday welcomed the Supreme Court decision, but added that the section affected the heterosexual population as well. Gohil said the decision “proves that there are people who still believe in humanity”
The court battle for the rights of the LGBT community first started in 2001, when Naz Foundation, an NGO fighting for gay rights, filed a public interest litigation (PIL) in the Delhi high court, seeking legalisation of gay sex among consenting adults. After that the high court dismissed the PIL seeking de-criminalisation of gay sex, and consequently a review petition in 2004.
On 2 July 2009, Chief Justice of Delhi high court AP Shah in a historic judgment struck down IPC Section 377 that criminalises gay sex, acknowledging its right to life and equality. It seemed Shah had permanently undone a huge injustice meted to a community that till then was considered largely criminal, merely because of its sexual orientation. The LGBT community, represented in their rainbow hues, celebrated the verdict. But these celebrations were short-lived.
The judgment raised some pertinent questions, including why popular morality is not ground for retaining Section 377, how fundamental rights of the Constitution take care of the sexual minority and how Section 377 doesn’t take into consideration factors like age and consent and has nothing to do with protection of women, children or public health.
But overruling the earlier progressive judgment delivered by the Delhi high court, the Supreme Court upheld Section 377 of the Indian Penal Code (IPC), which penalizes any “carnal intercourse against the order of nature” in 2013.
Even though the 2013 judgement is replete with flawed reasoning and legal arbitrariness, two of the issues raised in it need to be dealt with forthright, points out an opinion piece in Mint. One, the court left it upon Parliament to repeal Section 377 if required. Even though the Supreme Court has been repeatedly—and justifiably—accused of transgressing into the domains of legislature and the executive, it baulked at the task of quashing a Victorian relic of a law that stands in direct contradiction with the fundamental rights of equality and liberty. Two, the most retrograde argument that the Supreme Court made for not abrogating Section 377 was: “...in last more than 150 years, less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires...” Even if a single person was prosecuted under this section, this number is one more than it ought to be.
Polls show about three-quarters of Indians disapprove of gay sex and are deeply traditional about other issues of sexuality, such as sex outside of marriage, reports The Guardian.
India is one of 75 countries where gay sex is illegal, according to the International Lesbian, Gay, Bisexual, Trans and Intersex Association. Although the law banning gay sex is rarely enforced in India, it is used to intimidate, harass, blackmail and extort money from gay people, activists say.
There are no official figures on the number of cases of harassment, and most go unreported as victims are too scared to report crimes to the police, fearing they will be punished too, activists say.
Not surprisingly, Hindu, Christian and Muslim organisations are already in a mood to spoil the party, deciding to oppose any move to legalise homosexual acts. They are unanimous that Indian society disapproved of homosexuality, no religion can approve it and the Delhi high court’s 2009 decision de-criminalising homosexual acts was based on “international trend and western influence”. They vociferously argue that there is a vast cultural difference between Indian and other societies of the world.
Catch all the Politics News and Updates on Live Mint. Download The Mint News App to get Daily Market Updates & Live Business News.
MoreLess
First Published:3 Feb 2016, 12:42 PM IST
- Top Gainers
- Top Losers
- 52 Week High