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End to unnatural exclusion

In a historic judgement, a two-judge bench comprising Chief Justice A P Shah and Justice Murlidharan has decriminalised non-heterosexual sex between consenting adults, writes Shohini Ghosh.

india Updated: Jul 02, 2009 23:55 IST
Shohini Ghosh

In a historic judgement, a two-judge bench comprising Chief Justice A P Shah and Justice Murlidharan has decriminalised non-heterosexual sex between consenting adults. In an eloquently argued judgement of 150 pages, the bench has struck down Section 377 of the Indian Penal Code (IPC), a colonial legislation drafted by Lord Macaulay in 1860, that criminalised “carnal intercourse against the order of nature” punishable by imprisonment extending up to ten years. India was one of the few countries left in the world that criminalised and discriminated on the basis of sexual orientation. By overturning Section 377, the Delhi High Court has foregrounded the importance of sexual rights, lent dignity to people of different sexualities and upheld the Constitutional values of democracy and equality.

Arguing that Section 377 is violative of Articles 21 (right to life and personal liberty), Article 14 (equality before law and equal protection from law) and Article 15 (prohibiting discrimination on several grounds including sex), the judgement holds that if there is one “constitutional tenet” that can be considered an “underlying theme” of the Indian Constitution, it is “inclusiveness”.

Nurtured over many years, “inclusiveness” recognises “a role in society for everyone” where “those perceived by the majority as ‘deviants’ or ‘different’ are not ‘excluded or ostracised’”. It argues that “Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the Lesbian, Gay, Bisexual and Transgender (LGBT) are. It cannot be forgotten that discrimination is the antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.”

However, it retains the provisions of Section 377 to govern “non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors” thereby allowing child sexual offenders to be prosecuted under it. However, it is now being strongly argued that child rights are best protected, not by the provisions of 377, but an entirely separate law.

This visionary judgement is the culmination of a ten-year legal battle. In 2001 Naz Foundation (an NGO related to HIV/Aids issues) filed a petition in the Delhi High Court asking for Section 377 to be ‘read down’ by decriminalising consensual sex among adults. In September 2003, the Government insisted on retaining Section 377 on the grounds that ‘Indian society’s disapproval of homosexuality was strong enough to justify it being treated as a criminal offence even where adults indulge in it in private’.

In February 2006, the Supreme Court ordered the High Court to reconsider the constitutional validity of Section 377. The Naz Foundation petition was supported by Voices Against 377, comprising 12 organisations across the country while it was being opposed by the government of Delhi and others. The position of the government (represented by the Ministries of Health and Law) has been conflicted while many of its affiliates demanded decriminalisation.

Naco (National Aids Control Organisation) demanded the scrapping of Section 377 as it was obstructing effective health interventions. The 172nd report of the Law Commission of India and the recommendations of the National Planning Commission for the 11th Five Year Plan also demanded decriminalisation of homosexuality.

In the last two decades, LGBT activism played a major role in creating awareness on the issue. In 2006 writer Vikram Seth released a public letter demanding that the “cruel” law be struck down. The letter was supported by a large number of signatories including Captain Lakshmi Sehgal, Aruna Roy, Soli Sorabjee, Shyam Benegal, Shubha Mudgal, Arundhati Roy, Aparna Sen, Mrinalini Sarabhai and demanded the scrapping of the “brutal law” that “punitively criminalises romantic love and private, consensual sexual acts between adults of the same sex” while being used to “systematically persecute, blackmail, arrest and terrorise sexual minorities”. Amartya Sen also asked for an abolition of the “colonial era monstrosity” that ran contrary to “the enhancement of human freedom” and India’s commitment to “democracy and human rights”.

Like all laws, Section 377 was used both inside and outside the courtroom. In 2001, activists of Bharosa Trust, Lucknow were arrested under Section 377 for running a “gay racket” and conspiring to “promote homosexuality” through advocating safe sex practices among homosexual and bisexual men. In 2006, the Lucknow police entrapped five gay men by tracking them over the internet and then arresting them under Section 377. For years, police have used Section 377 to extort, threaten, intimidate and harass LGBT people. Commenting on how law-enforcers can misuse such penalisable offences, Amartya Sen observed that the harm done by such an “an unjust law” can, therefore, “be far larger than would be indicated by cases of actual prosecution”.
It remains to be seen how the UPA government responds to a judgement that derives its inspiration from a Nehruvian vision of ‘Equality’. While moving the ‘Objective Resolution’ on December 13, 1946, Jawaharlal Nehru said (and the Judgement quotes): “Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation’s passion. [The Resolution] seeks very feebly to tell the world of what we have thought or dreamt of so long, and what we now hope to achieve in the near future.”
These words no doubt echo the feelings and aspirations of all LGBT people and their friends and family.

Shohini Ghosh is Sajjad Zaheer Professor at the AJK Mass Communication Research Centre, Jamia Millia Islamia, New Delhi