The apex court on 2nd February heard in an open court a curative petition against its decision which makes homosexuality a criminal offence. The petition was heard by a bench led by Chief Justice T S Thakur. This is the last chance for the opponents of Section 377 to get the Koushal judgment overturned.
The entire discussion over Section 377 has been a part of public debate for a long time. The debate about scrapping this section is not entirely a debate whether gay sex is good or bad, moral or immoral but the fundamental question is whether it should be a criminal activity. The Supreme Court of India constituted a constitutional bench to hear the entire matter. Section 377 of the Indian Penal Code holds that carnal intercourse “against the order of nature” will be punished with imprisonment for life, or with imprisonment for term extending to 10 years and may be accompanied by a fine. It was drafted during British colonial rule in India with a view to punish and criminalize consensual sodomy which makes homosexuality a criminal offence.
The Home Ministry in 2003 said that repealing Section 377 will open floodgates of delinquent behavior. The Government told the court that the Indian society by large disapproves homosexuality and continues to maintain it as a disease. It is saddening that India treats homosexuality as a disease whereas medical establishments all around the globe (WHO, American Psychiatric Association) have accepted homosexuality as a normal behavior not a disease.
Section 377 has no jurisprudential justification. The state cannot punish individuals on their consensual sexual behavior which does not harm a third party and is fairly within their individual autonomy. This section makes homosexuality a criminal act, a criminal act not based on conduct, choice and preference but on orientation. This is where the people of this country fail to understand gender and sexuality. The sexual act does not become immoral just because majority believes so. Under a constitutional morality there is no possible way in which homosexuality can be criminalized in this country.
In 2001 Naz Foundation (an NGO working on health) filed a PIL seeking a reading of Section 377. They petitioned not to repeal the concerned section as a whole but to exclude private consensual sex between adults. The PIL was dismissed by Delhi high court on the ground that it had no locus standi on the issue. The NGO wanted reading of the section on the ground that it prevents health workers from openly working with gays on prevention of AIDS. Naz Foundation went to the Supreme Court against the Delhi High Court order. Supreme Court sent back the matter to the High Court and asked them to consider the case on merit. In the meantime, Bombay High Court said India’s unnatural sex law should be reviewed. In 2009, Delhi High Court decriminalized homosexual intercourse between two consenting adults and said section 377 infringes the fundamental right of life and liberty. Across the country the decision was celebrated by people who see decriminalization of homosexuality as a vital step towards the acceptance of homosexuals in the society. But in 2013 the Supreme Court set aside landmark verdict of the Delhi high court which decriminalized ‘unnatural sex’ and said that “the onus is on the competent legislature or parliament to consider the desirability and propriety of deleting Section 377 of IPC from the statute book or amend the same”.
Following the direction of the Supreme Court MP Shashi Tharoor introduced a bill in parliament proposing an amendment to legalize gay sex but sadly it was shouted down. Tharoor said that intolerance against homosexuality is so high that even introducing the bill was not allowed.
The Supreme Court will now hear the curative petition against its own decision. Curative petitions are the last resort to justice. There is no mention of curative petition in the constitution or any statutes. It is judicial creation and Supreme Court came up with it in Ashok Hurra Vs Rupa Ashok Hurra. In this case the wife challenged the divorce granted by the Supreme Court and challenged it through a writ petition under Article 32. The court held that its final judgment cannot be challenged in such a manner and came out with a new remedy- curative petition. The curative petition can only be filled after the failure of the review petition and there are only two grounds for filling it- failure of natural justice and undisclosed bias of the judge which adversely affected the case.
Ordinarily curative petition is dismissed and very rarely it goes back to the original court. The success is also very rare, only three times in history a curative petition has succeeded. But in this case the tone of the Supreme Court is a bit changed as it has indicated that a substantial question of law is involved in this matter of enormous public importance and it needs to be looked by a constitutional bench. This is something which the Koushal judgment failed to take into account. The case is led by Anand Grover, who has been fighting for the rights of LGBTs and HIV patients since 90s and joining him are eminent lawyers like Kapil Sibal, K. K. Venugopal, Shyam Diwan and Ashok Desai.
The Supreme Court must take into notice that similar anti-sodomy laws like Section 377 have been abolished by South Africa, America, Australia, Nepal and International Covenant on Civil and Political Rights (to which India is a signatory). India is one of the handful of countries which retain such criminal provisions in their law. Britain, the author of IPC and Section 377 decriminalized homosexuality in 1967.
To uphold the traditional view of the majority is not a sufficient reason for upholding a law. People with homosexual preference are not abnormal or immoral; they should not be treated as criminals or be discriminated against. In 2013 the apex court recognized that there is a third gender and if they recognize that there is a third gender they cannot take their right to show love or to have sex in whichever way they want.
Section 377 acts as a weapon of police abuse in the form of detention, questioning, extortion, harassment and even forced sex. The criminalization of homosexuality increases the stigma attached to it. This stigma backed by imprisonment and fine, stops gay men from coming out in public which makes an adverse impact on fight against HIV and AIDS in India. Organizations working on HIV prevention find it hard to reach them.
Most of us have grown in extremely homophobic communities which fail to understand homosexuality. India, as a nation, is extremely conservative and it will take some time to accept LGBT rights, but the first step towards this is to get rid of Section 377. The legal sanction of homosexuality will not guarantee its social acceptance but it will provide a sense of self acceptance, comfort and confidence among gays, lesbians, transgender, bisexual and hijras. Section 377 is not about sex. It is about freedom and the rights guaranteed by the constitution. As the interpreter and the custodian of the constitution, Supreme Court is best suited to decriminalize homosexuality and abolish this medieval law based on Victorian moralism for the citizens of India.