There are few issues before the Supreme Court that have had such a strong emotive appeal, generating interest globally, as the legal battle against section 377 of the Indian Penal Code, the law that criminalises homosexuality in India. A three-judge bench of the Supreme Court comprising the three most senior judges on the court – Chief Justice Justice T.S. Thakur, Justice Anil R. Dave, and Justice Jagdish Singh Kehar set to hear curative petitions that have been filed challenging the Supreme Court’s decision in December 2013 when it held section 377 to be constitutional, but said Parliament has the power to change the law. At this stage the judges have three options - they could decide to hear the matter, and begin the proceedings immediately, they could decide to hear the matter and post it for another date, or they could dismiss the case. If the case is dismissed, then opponents of the law will have to wait until a fresh case is filed in the courts.
The court hearing comes just a over a month after Lok Sabha MPs in the Winter Session of Parliament the voted down a motion to discuss a private members Bill drafted by Congress MP Shashi Tharoor, that asked for section 377 to be amended to remove from its ambit consensual sex between adults. The MPs’ refusal to even discuss the bill, let alone consider passing it, demonstrated that it is the judiciary that is best placed to consider the constitutionality of this law. Left to elected members of the legislature, section 377 is unlikely to be changed soon.
Interestingly, the court hearing coincides with the India release of Hansal Mehta’s film Aligarh, based on the life and death of Aligarh Muslim University (AMU)’s Professor Ramchandra Siras, who committed suicide after he was expelled from the campus of the university, because of an unethical sting conducted in his residence on campus where he was filmed having sex with a man. Although Siras challenged the university’s decision to expel him from the campus successfully in the Allahabad High Court, he committed suicide soon after. Siras, who was the head of the department of modern Indian languages at AMU, took on the role of an activist in the short span that this episode played out, and publicly talked about the difficulty of being gay in a conservative environment.
Professor Siras’ tale reflects the lives of millions of LGBT persons in India today. Faced with the prospect of societal censure, and laws that criminalise consensual sex, LGBT persons continue to bravely speak up about the discrimination they face, and demand equal rights. The story of Professor Siras reflects the core argument that has been made in court against section 377 – even if it is difficult to gauge the exact number of arrests made under this law, the fact is that the law creates an atmosphere legitimising discrimination and abuse of LGBT people. It sends out a message to people that they are unequal, and there is something wrong with them. It allows for quacks posing as psychiatrists to prescribe electric shock therapy to homosexuals in order to ‘cure’ them.
Protestors demanding the repeal of section 377 IPC at Town Hall during the Bengalure Pride March, 2008. Image Source: On File with Author
It is apt then, that the petitions before the Supreme Court are asking for the judges to cure the defects in the judgment laid down by the same court in 2013. These defects, the petitions argue would lead to such a gross miscarriage of justice, that the court must used its powers and correct its previous decisions. The curative power of the court is a recent judicial innovation, and this case in some ways is a test of how this power is exercised. Will the Supreme Court use this power to rectify its mistake in 2013 completely ignoring reams of evidence placed before it on the way in which the law impacts the LGBT community, held that there was insufficient evidence of discrimination against what it termed “a miniscule minority”.
The struggle for LGBT rights in India is a relatively recent political battle that has galvanized support from a wide spectrum of people across ideological boundaries, and cutting across barriers of age, language and class. The colourful pride marches; flamboyant imagery, the determination and enthusiasm with which this battle has been waged have won the minds and hearts of many in this country. Whichever way the court goes, the gains made by the LGBT movement cannot be reversed that easily. Thousands of people continue to come out every day, and law or no law, there is no way that LGBT persons can be forced back into the closet.
The stage is set for the final scene in this long emotive legal battle that has lasted for over a decade. It will be ironic though if the political struggle for LGBT rights is not accompanied by appropriate legal change. The Supreme Court’s decision in 2013 stands out like a sore thumb among its much talked about judgments, including its 2014 NALSA decision on the rights of transgender persons. It remains to be seen if this bench of the Supreme Court will take the courageous step of correcting this anomaly.