The Recent Supreme Court Decision On Article 377 Is A Small Step Yet Cause For Cheer

Posted: February 4, 2016

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Article 377, an archaic law that criminalises consenting adults has been referred by the Supreme Court to a new bench. Cause for hope?

As I walked through Gate no. D of the Supreme Court (SC) complex, I felt a giddiness in the pit of my stomach. It was my first ever visit to the apex court and the occasion was made doubly special by the motive behind the visit. The curative petition against the court’s December 2013 verdict which had reinstated Section 377 of the Indian Penal Code (IPC) was up for consideration.

Section 377 is widely known by now for being a notorious and archaic law that makes all forms of sexual intercourse that are against the ‘order of nature’ a criminal offence, the maximum punishment for which is life imprisonment. To everyone’s pleasant surprise, the 3 judge bench headed by Chief Justice of India (CJI) T.S. Thakur, referred the matter to a constitutional bench, which would consist of 5 judges.

This may seem as a small victory right now, but if put in the wider context of the issue, is actually a big deal. Firstly, given the history of curative petitions (which is itself a new innovation brought in by the SC in 2002), the fact that it did not get instantly dismissed is remarkable.

Secondly, it is rarely seen that the SC agrees to hear a curative petition in an open-court as opposed to closed chambers. These two factors have greatly boosted the morale of the petitioners as well as the larger LGBT+ community, which was terribly letdown by the December 2013 verdict; but now seems more hopeful.

As LGBT activist and Naz Foundation Director Anjali Gopalan put it, “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.”

As we wait for the new bench to be constituted and a new hearing date set, a recurrent question (which was asked by the numerous media persons assembled on the SC lawns) comes to my mind: what are our expectations from the future course of action on this case?

In the best case scenario the SC will realize its 2013 oversight of epic proportions, decriminalize section 377, and we can finally heave a sigh of relief and rejoice. But in order for that to happen, the SC will have to be convinced that the 2013 verdict was a ‘gross miscarriage of justice’, a ‘violation of natural justice’ or a ‘suspected bias by a presiding judge’; these are the stringent parameters which the curative petition needs to meet.

The SC doesn’t need to look too far when it considers the petition; the Delhi HC in 2009 had struck down section 377 for violating the fundamental rights to life and liberty and the right to equality before the law of the Constitution. More importantly, the SC should on humanitarian grounds get rid of this law, that has put the life and dignity of millions at risk, and has institutionally legitimized the discrimination and violations faced by the LGBT+ community on a daily basis.

A person’s sexual orientation, especially today in the 21st century, should not be subjected to the kind of bias, ignorance and shame, as is done in our country. The very fact that I’m typing this piece out in 2016 puts to question every kind of ‘progress’ we feel we have achieved. A positive SC judgment in the future needs to be the starting point for the systematic removal of discrimination and alienation of this community.

Notions that such ‘practices’ are ‘Western imports’, ‘Genetic disorders’ or ‘Mental illnesses’ reek of a society that is stranded in an ancient century, and can only dream of real progress and development.

Dr. Ambedkar’s words on 25th November 1949 (commemorating the adoption of the new Constitution) ring loud in our ears today, “On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality.”

Here’s hoping that the SC, which also has a history of being progressive, removes one such gross inequality and restores our collective dignity.

Image of multiple hearts courtesy Shutterstock

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