On Section 377, SC gets chance to do what the legislature failed to

Last Updated: Thu, Jul 12, 2018 18:57 hrs
A man sells rainbow flags near The Stonewall Inn, on the eve of the LGBT Pride March, in the Greenwich Village section of New York

The government on Wednesday said it would not contest demands to declare as unconstitutional Section 377 of the Indian Penal Code. It stated that it would leave the decision to the 'wisdom' of the Supreme Court. However, it did caution against debating issues such as gay marriage, adoption and ancillary civil rights.

The affidavit from the Ministry of Home Affairs read in part, "I state and submit that so far as the constitutional validity (of) Section 377 to the extent it applies to 'consensual acts of adults in private' is concerned, the Union of India would leave the said question to the wisdom of this Hon'ble Court".

The affidavit was submitted before a five-judge Constitution Bench led by Chief Justice of India Dipak Misra, who declared to government, "It means you are not contesting this."

Section 377 of the Indian Penal Code (IPC) states that anyone who has consensual sexual relations against the order of nature with a man, woman or animal can face imprisonment. This archaic law dates back to 1861 and it states any homosexual relations are unnatural and criminal. The past three days have been a significant step forward in repealing this law.

The road to get here has been quite long.

In 2001, the Naz Foundation filed a PIL in the Delhi High Court, challenging the constitutional validity of Section 377, but three years later it was dismissed. In 2006, the apex court, though, allowed the challenge by the Naz Foundation. In 2009, the Delhi High Court in the Naz Foundation v. Govt. of NCT of Delhi described Section 377 as a violation of fundamental human rights which are guaranteed to every citizen by the constitution. Religious groups objected to this and moved the Supreme Court for a verdict that struck down the high court order.

The Supreme Court in 2013 did just that; it overruled the Delhi High Court order stating that it was the job of parliament to scrap laws. In addition, it stated that "a minuscule fraction of the country's population constitutes lesbians, gays, bisexuals or transgenders." It was a setback for the LGBTQ community.

The current and previous governments have been more than hesitant to withdraw Section 377, despite bills being put forward in parliament, most recently and notably by Congress MP Shashi Tharoor who put forward a private members bill twice in parliament but did not get enough votes.

The Indian Express editorial stated that the right place to decide this was the court –

"The Supreme Court is the proper guardian of the rights of minorities like the LGBT community — in Parliament, majoritarian opinion may prevail. Besides, the validity of Section 377 is a question of right and wrong, which is best addressed legally."

The BJP didn't give any clear indication until the affidavit was submitted, but stated they would not contest declaring Section 377 as unconstitutional. The core base of the BJP being Hindutva, BJP leader Subramaniam Swamy, in a homophobic remark, said homosexuality is not a normal thing. "We cannot celebrate it. It's against Hindutva," he warned.

The line on Hindutva is striking considering the RSS has changed its position on homosexuality. Raghav Awasthi, an advocate and an RSS member, in a column for The Print, states this point –

"This is a paradigm shift from the position that the RSS has taken in the past, notably after the Naz Foundation verdict came out in July 2009. But the fact that the RSS has made a conscious decision to revisit its original position also says a lot about how it is not as hidebound an organisation as its detractors claim it to be."

Though this is a step forward for the RSS, Raghav refers to RSS office bearer Dattatreya Hosbaleji's remarks in March 2016 where he stated that homosexuality should not be criminalised but called it a socially immoral act and to be treated as a psychological order. This week, the Indian Psychiatric Society declared homosexuality a sexual variation and not a mental illness.

Raghav though does pose the question of how Islamic clerics and leaders in the country will respond to a verdict making homosexuality legal.

Fast forward to this year, in January, the Supreme Court stated it would reconsider the judgment with a larger bench and examine the constitutional validity of Section 377 stating that "The section of people who exercise their choice should never remain in a state of fear". This was argued by Advocate Menaka Guruswamy during this week's hearings, representing 20 IIT students and alumni; she put forward some of the examples of threats and intimidation that her clients face as a result of their sexual orientation.

Last year, a nine-judge bench of the Supreme Court in a unanimous verdict ruled that Indians enjoy a fundamental right to privacy that is intrinsic to life and liberty which comes under Article 21 (right to life and personal liberty) of the Indian constitution. This could serve as precedent for the current debate and ultimate judgment on Section 377 by the Supreme Court. One could argue that Section 377 could have been rendered void by this judgment.

The judgment stated that "the right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the constitution". Ms Guruswamy noted that the constitution must be interpreted in a broad way, citing recently retired US Supreme Court Justice Kennedy in his 2015 majority opinion legalising same-sex marriages in the United States, observing that "the generations that wrote and ratified the Bill of Rights... did not presume to know the extent of freedom in all its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty..."

In last year's judgment on privacy, the Supreme Court had stated that "privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation". Some arguments over morality were addressed by the court in its judgment stating that social morality changes over time.

While both parties have had opportunities to scrap Section 377 and failed to do so, it is up to the apex court to ensure that the LGBTQ community be afforded the same rights as others. For LGBTQ activists, it has been a long and tenuous journey waiting for the country to move in the right direction.

With a possible verdict on 377, there are still other factors with respect to marriage, adoption and other rights that still need to be addressed, which the government, as previously stated, has cautioned against; but the court now has a chance to do the right thing as stated by the Indian Express editorial –

"...it is high time that India, which is clubbed with nations like Saudi Arabia and Somalia for criminalizing same-sex relationships, may be freed of a shameful legacy of the Empire."

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