The joy on the faces of Pankaj and Dhruv had to be seen to be believed. It was as if they had found something lost and dear after a long search.
“You know it’s very special day for us… It is as if someone has pulled us back from the brink of hopelessness,” said Pankaj, 29, in a state of excitement. I spoke to Pankaj on February 2, when the Supreme Court of India, in a landmark decision, referred a batch of curative petitions against Section 377 of the Indian Penal Code to a five-judge constitutional bench for an in-depth reading.
Section 377, the colonial era provision that criminalizes consensual sexual acts of lesbian, gay, bisexual and transgender (LGBT) adults in private deeply affected the social reality of modern India. It made individuals like Pankaj and Dhruv criminals in the eyes of the law.Enjoying this article? Click here to subscribe for full access. Just $5 a month.
Scores of the LGBT activists, who descended on the Supreme Court that day, broke into jubilation when the apex court decided to revisit its own order from 2013, when judges overturned a four-year-old ruling of the Delhi High Court that had read down the part of Section 377 that criminalizes consensual LGBT sexual activity.
The constitution of a five judge bench by the apex court, therefore, “signifies a major rethink on the part of the Supreme Court and it’s quite possible that the five judge bench might open the substantial issue of debate,” says Siddharth Narrain, a lawyer and research associate at the Centre for the Study of Developing Societies (CSDS) in New Delhi.
The struggle for LGBT rights in India is a relatively recent phenomenon, but in a short time it has stirred the consciousness of the people, cutting across not only ideological boundaries, but also the barriers of age, language, and class.
Section 377 of the IPC is a legacy of British colonial law. In 1860, the imperial power criminalized homosexual acts, reflecting the Victorian morality of the times.
The first murmurs against Section 377 started in the 1990s, but the law came to be formally challenged for the first time in 2001 by the Naz Foundation, a non-governmental organization (NGO) that works on HIV/AIDS and sexual health. The main ground for challenging the law was that it was an infringement on the right to health inscribed in Article 21 of the constitution. However, a division bench of the Delhi High Court dismissed the case in 2004, saying it was not important.
Then, on an appeal from the Lawyers’ Collective, an NGO working in the area of human rights, the Supreme Court directed the Delhi High Court to hear the case as it was important. In 2006, a coalition of organizations under the banner of “Voices Against 377” became a party to the case.
After hearing the case for three years, the court in a landmark judgement in 2009, read down the Section 377, thereby decriminalizing consensual sex between LGBT people in India. This was a historic verdict that gave the LGBT community relief and dignity.
“Most importantly, for the first time, I felt that I also have a stake in our society; that I am also a part of the system,” says Laxmi, a transgender woman, recalling the days in 2009.
However, the High Court order came to be challenged by different religious groups and in 2013 the apex court overturned the 2009 verdict, declaring the dilution of Section 377 by the High Court as unconstitutional.
The Supreme Court maintained that the law passed by the legislature carries the will of the people and can only thus be amended by an act of parliament. For three years, the highest court of the land refused to stay its order or entertain any curative petition in this regard.
But the decision of the court to now revisit its 2013 order demonstrates new thinking on the part of the court.
“Consensus has grown that says that the law does not mean anything now. There is now strong opinion in favor of the change to Section 377. People are now aware of the issue and it has become more difficult for the court to defend its 2013 decision. Therefore, the apex court’s decision will reflect the opinion of the people,” explains Narrain.
While the court is showing new thinking on Section 377, the legislature still seems to be caught in a time warp. In the last session of the parliament, the Lower House rejected a member’s bill, introduced by Shashi Tharoor, a parliamentarian from the opposition Congress party, to decriminalize homosexuality.
He has circulated a petition now, aimed at building public support in favor of amending Section 377.
In an opinion piece on NDTV, Tharoor writes:
…what I am hoping is for an open debate on the issue. I think parliament needs to hear – and the nation must hear it said in parliament – that this is not about sex but about freedom. Section 377 violates our constitutional rights of dignity, privacy, and equality (Articles 14, 15 and 21). It is a British relic, drafted in 1860 and based on outdated Victorian morals. It has no place in a modern nation like India.
Citing a study done by the World Bank in 2014, entitled The Economic Cost of Homophobia in India, he writes, “India suffers a loss between 0.1 to 1.7 percent of GDP because of homophobia? Or that Section 377 costs the nation between $712 million to $23.1 billion in health costs (HIV, depression and suicides)? There’s a price to be paid for bigotry, and the whole nation is paying it.”
The vehemence with which the ruling legislators of the Hindu right-wing Bharatiya Janata Party (BJP) rejected Tharoor’s bill demonstrates a deep political divide on this issue.
“Our only hope is from judiciary. With the political atmosphere becoming so intolerant, it is not easy to have the law amended by the parliament. What we expect is dignity and I am sure the five judge bench will correct the historical wrongs against us and give us the space in our society, which we have been deprived of so far,” says a hopeful Dhruv.