The law is not moved: SC puts decriminalising homosexuality on backburner

  • Satya Prakash, Hindustan Times, New Delhi
  • Updated: Jun 30, 2016 15:59 IST
LGBT activists protest against Supreme Court’s judgement on Section 377 in December 2013.

The Supreme Court has effectively put the issue of decriminalising homosexuality on the backburner, at least for the next few months, by referring a petition by LGBT celebrities seeking to legalise gay sex to Chief Justice of India.

A bench of justice SA Bobde and justice Ashok Bhushan on Wednesday said the matter was already pending before a constitution bench and it was for the Chief Justice of India TS Thakur to pass “appropriate orders”.

The petition filed by Lesbian, Gay, Bisexual and Transgender celebs--chef Ritu Dalmia, hotelier Aman Nath, dancer NS Johar, journalist Sunil Mehra and business executive Ayesha Kapur--is now likely to be taken up along with a curative petition on the issue that was sent to a constitution bench in February this year.

Their petition is important as it is the first time that people affected by Section 377 of the Indian Penal Code have approached the Supreme Court against the colonial-era law. So far, the court was dealing with public interest litigation on the issue.

The LGBT celebs have raised the issue of their sexuality and sexual preference contending it is part of their right to life guaranteed under Article 21 of the Constitution.

Here are the twists and turns Section 377 has seen:

The law

Section 377 of the IPC that came into force in 1862 defines unnatural offences. It says, “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine.”

Delhi HC legalises homosexuality

Acting on a petition filed by Naz Foundation, the Delhi high court had in July 2009 decriminalised consensual homosexual acts in private by declaring as unconstitutional a part of Section 377 that criminalises unnatural sex, saying “the section denies a gay person a right to full personhood…”.

SC reverses high court order

The top court set aside the HC’s verdict in December 2013. Upholding the constitutional validity of Section 377, an SC bench headed by justice GS Singhvi (now retired), put the ball in Parliament’s court, saying it was for the legislature to take a call on the desirability of the controversial provision.

The court also dismissed the review petitions on the issue.

SC refuses to modify 2014 order; says lesbians, gays, bisexuals not third gender

Curative petitions

It was in February this year that the SC decided to hear in open court curative petitions – the last legal recourse available to litigants – on Section 377 but no progress appears to have been made. The court must realise that these curative petitions offer an opportunity for it to rectify the mistake of re-criminalising homosexuality in the country.

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. Generally, judges decide a curative petition after discussing it among themselves through a procedure called “hearing by circulation”.

Members of LGBT community react in Mumbai after the Supreme Court in December 2013 refused to overrule Section 377, a law that holds homsexuality as criminal. . (Satish Bate/ HT file photo)

Homosexuality a taboo

Homosexuality is considered a taboo in a largely conservative Indian society which appears to be divided on the controversial issue. Freedom loving people, not necessarily belonging to the LGBT community, want homosexuality decriminalised but many still consider it a “deviant behaviour” and not merely a question of one’s sexual orientation or preference.

Implications for heterosexuals

The case has implications for heterosexuals also, as consensual sexual acts of adults such as oral and anal sex in private are currently treated as unnatural and punishable under Section 377.

Emerging political consensus

Successive governments have defended the archaic Section 377 which is based on 19th-century Victorian morality. But the intense debate in the society and the media appears to have forced the political class to change its stance.

After eluding it for years, political consensus is building on the issue.

The BJP which had supported the SC’s verdict upholding Section 377 now appears to support the Delhi HC decriminalising consensual homosexual acts in private.

“When millions of people world over are having alternative sexual preferences, it is too late in the day to propound a view that they should be jailed. The Delhi high court’s view appears more acceptable,” senior BJP leader and finance minister Arun Jaitley had said in November last year, expressing his personal opinion.

Jaitley’s view was supported by senior Congress leader P Chidambaram. Even otherwise, Congress has openly supported legalising homosexuality. Aam Admi Party and Communist Party of India-Marxist are also said to be in support of declaring Section 377 unconstitutional.

Even RSS has termed sexual preferences a personal matter.

“I don’t think homosexuality should be considered a criminal offence as long as it does not affect the lives of others in society,” RSS joint general secretary Dattatreya Hosabale said in March this year.

The SC needs to take note of these developments and the emerging socio-political consensus on the issue.

Law and morality

Those against legalising homosexuality argue that it is against the moral values of the society. What is forbidden in religion need not be prohibited under law. Morality cannot be a ground to restrict the fundamental rights of citizens. A legal wrong is necessarily a moral wrong but vice versa is not correct. A moral wrong becomes a legal wrong only when its consequences are for society and not just the person/s committing it.

Constitutional question

The real question relates to the constitutional rights of the LGBT community. The 2013 SC verdict criminalising homosexual acts goes against established constitutional principles of personal liberty, equality before law and non-discrimination on the basis of sex or sexual preferences.

Presuming that homosexuality is against the prevailing social morality, a perceived larger interest of the society be given precedence over individual liberty and the right to privacy guaranteed under Article 21 of the Constitution? Can the state or society regulate the sexual preference and behaviour of consenting adults in private?

The Supreme Court will have to find the right answers to these questions.

The role of the state and society is to provide a congenial atmosphere to individuals to make them realise their potential so as to give their best to the society. Obstructing individual freedom and criminalising their intimate moments cannot help to achieve this objective.

SC verdict on transgenders

In its landmark April 2014 verdict, hailed by gender rights activists, the top court directed the government to declare transgenders a ‘third gender’ and include them in the OBC quota. Underlining the need to bring them into the mainstream, it said they should have all rights under law, including marriage, adoption, divorce, succession and inheritance.

PM Narendra Modi on transgenders

In November 2015, Modi had regretted the deplorable condition of transgenders in Indian society and said governments needed to change their outlook. “We need to amend and make new laws for transgenders,” he said at the foundation day celebration of National Legal Services Authority (NALSA).

The NDA government has prepared a draft law recognising the rights of transgenders with a view to ensure they are not discriminated against. All these developments allude to the change in the mindset of the top court and the government.

International developments

There have been many positive developments in favour of the LGBT community on the international front. In May 2015, Ireland legalised same-sex marriage. Ireland that decriminalised homosexuality in 1993 became the first country to allow same-sex marriage on a national level by popular vote.

In June 2015, the US Supreme Court ruled that same-sex marriages were legal.

Near home, Nepal legalised homosexuality in 2007 and the new Constitution of the country too gives many rights to the LGBT community.

France, UK, Canada, United States, Australia and Brazil have decriminalised homosexuality. Other countries like Belgium, Brazil, Canada,France, Iceland, Ireland, Luxembourg, Norway, Portugal,South Africa, Spain, Sweden and Uruguay allow either same-sex marriage or a civil union.

India currently stands with a host of countries such as Nigeria, Ghana, Iran, Saudi Arabia, Afghanistan, Mauritania, Qatar and Pakistan that criminalise homosexuality.

On June 30, the United Nations Human Rights Council seeks to establish the first UN Independent Expert on sexual orientation and gender identity (SOGI). India’s stand would be keenly watched.

Child abuse and Section 377

Child rights activists criticised the Delhi HC verdict decriminalising homosexuality on the ground that Section 377 was needed to be on the statute book to tackle cases of child abuse. But after the enactment of the Protection of Children from Sexual Offences (POCSO) Act 2012, there is no need to use Section 377 in child sexual abuse cases. POCSO is more child-friendly and much more stringent.

SC must draw ‘Lakshman Rekha’

The SC must draw a ‘Lakshman Rekha’ for the state, which cannot be allowed to peep into the bedroom of consenting adults on the ground of their preference for “unnatural sex”.

If not declared completely unconstitutional, Section 377 must be at least read down – something the Delhi high court did in 2009.

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