By Pundrikaksh Sharma
As anyone who studies or has studied law will tell you, the law reflects the morals and ethics of the society it comes from. Or does it? Law, like man himself requires a degree of flexibility and adaptability to changing times and eras. Yet unfortunately, the much needed review in law in order for it to conform to modern standards, wherein the right to express one’s sexual identity is said to exist, has been delayed in India far too many times.
While 2015 was extremely empowering to the LGBT community in the West such as the USA, UK and Ireland, India still treats a part of its citizens as no more than criminals. Section 377 of the Macaulay-drafted Indian Penal Code is that draconian instrument.
Section 377 is simultaneously the most talked about thing today, as well as the primary subject of taboo. Whereas a significant part of the populace has come to be aware of the issues at hand, an equally significant portion of the political class has turned away from the same to avid offending much of their conservative constituents. And yet, the Apex Court’s hearing on February the 2nd, is once again, the talk of the town, flooding inboxes and newsfeeds alike, among supporters and protesters.
Section 377: Where did it come from?
Unfortunately, section 377 is a colonial aftertaste, left behind by the British, a part of legislation that still conforms to Victorian, pseudo-Anglican morals. The text criminalizes sexual activities against “the order of nature”, an expression that has been held to mean “any act of penile insertion without the intention of procreation”.
A broad reading of the text thereby also bans consenting oral or anal heterosexual intercourse, but well, with heterosexuals being the majority, we found a loophole to the entire oral intercourse prohibition, which essentially sees oral intercourse as foreplay to reproduction, thus permissible. Sodomy is still banned though.
Of course, there’s also the part about it being in bad taste, because despite severe insistence by your orange clad crusaders, India never really saw homosexuality as a taboo. Our society’s well-entrenched homophobia, although was developed by the British, has been fueled and sustained by an active conservative faction of people.
LGBT rights in India have been championed by the Naz Foundation and their struggle with the justice system would put any tennis volley to shame. In 2001, the Naz Foundation filed a case in the Delhi High Court seeking legalization of consensual homosexual intercourse between consenting adults. By 2003, the Delhi High Court rejected the same, saying that the Naz Foundation had no locus standi, which is to say that they were not involved in the matter enough to have the right to bring such a case.
There was then an appeal to the Supreme Court, which allowed for the Naz Foundation to press for the case as a Public Interest Litigation.Luckily, in 2009, the Delhi High Court delivered the verdict Naz Foundation vs Government of NCT of Delhi, wherein they read down Sec 377, decriminalizing consensual homosexual intercourse between adults while still acting against non-consensual non-vaginal intercourse, pedophilia and bestiality.
Unfortunately, in 2013, the Supreme Court then again overturned the verdict, criminalizing homosexuality again and passed the ball into the legislature’s court.
Shashi Tharoor’s private member’s bill in order to decriminalize homosexuality was scrapped without discussion, with politicians hiding their biases under the protection offered to them by the SC judgement. What’s worse however, was how Mr. Tharoor was subjected to boos and jeers from a leering portion of the Parliament.
Simply stated, this reflects a dangerous trend. Politicians are voted in by the majority and it is hardly a secret that a large number of our reputed netas would do anything in order to hold onto their seats. In that scenario, supporting rights for homosexuals might be a little problematic for our netas, since most of them rely on a fairly large conservative demographic. What that means is that the hope lies not with the legislation, but with the judiciary. The Judiciary should wear the hat and role of Judicial activism and duty over Judicial refrain, an aspect only furthered by its own independence form any other organ of the government. The curative petition on the 2nd of February, where the SC is allowed to review one of its earlier orders and judgments and cure its defects, was therefore understandably looked up to.
What happened on 02/02/2016?
The said curative petitions, heard by a three judge bench, including the Chief Justice of India TS Thakur heard and transferred them to a five member constitutional bench.
During the proceedings, CJ Thakur told the representative of the petitioner Naz Foundation, advocate Anand Grover that the new Bench may not limit itself to the narrow confines of the curative law — the Curative Bench will only entertain if petitioners prove that its review verdict violated principles of natural justice and the judges were biased — and opt for a comprehensive hearing of the arguments placed for the protection of the dignity and rights of the LGBT community.
It’s heartening to see that the Court be willing to take a step for LGBT rights, and even though some may criticize its commitment to protocol (aka referring the matter to a 5 member constitutional bench), the same protects subsequent judgments from challenges on grounds of problems with protocol. The involvement of senior advocates show that there is much to hope for from the petitions which are to be heard later.
The fact that the constitutional questions posed also include questions on the very emergence of Sec 377 and a reading of the LGBT community as a minority whose rights the Court must safeguard indicates that the final judgement of the constitutional bench shall be viewed with the lens of history one day and it would either stand for the greatest achievement or the greatest letdown of the Supreme Court of India.
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Views presented in the article are those of the author and not of ED.