There is no constitutional validity to Section 377 of the Indian Penal Code. The Delhi High Court said as much when it read down the archaic law in its verdict in 2009. But when the Supreme Court reinstated the law in the 2013 Suresh Kumal Koushal vs. Naz Foundation judgment, the battle began anew.
As of now, a total of six petitions before the apex court. They were filed by classical dancer Navtej Singh Johar, trans activist Akkai Padmashali, The Lalit Group’s executive director Keshav Suri, activist Arif Jafar, activist Ashok Rao Kavi (who the first man to come out in India), and finally student Anwesh Pokkuluri. The hearings began on July 10, before a five-judge bench led by Chief Justice of India Dipak Misra.
Each lawyer appearing on behalf of the petitioners is charged with the task of removing the obsolete and oppressive law from the books. And here’s how they’re doing so far:
The contexts in which this law was made had to be highlighted. Nearly every advocate emphasised the Victorian morality that fed Section 377. Its validity was also questioned, since it is a pre-Constitutional law. On the bench, Justice Chandrachud responded that the court might not have the same deference for laws made in the absence of Parliamentary will, since they did not reflect the democratic spirit of India.
Advocate Arvind Datar added that had Section 377 been framed today, it would never have been passed, simply because it violates Articles 15 of our Constitution (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) as well as Article 19 (freedom of speech and expression) and Article 21 (the right to life and liberty).
Unnatural offenses. Against the order of nature. The two most common reprimands that form the core of Section 377. Time and again, the 19th century anti-sodomy and anti-bestiality law is used to harass, blackmail, abuse, arrest or extort money from LGBTQ Indians (specifically men, as Senior Advocate Mukul Rohatgi said).
As an example, Senior Advocate Anand Grover brought up the tragic death of Ramchandra Siras, a professor at Aligarh Muslim University. He further argued that the law was too vaguely worded. In theory, anything that is not a penile-vaginal sexual act with the purpose of procreation is a criminal offense. Oral sex, anal sex, fellatio, even using a sex toy. In theory, it should cover heterosexual partners as well, but it primarily used against same-sex partners.
Making note of this unfairness, Justice Rohinton Nariman recognised that what people call “the order of nature” changes over time. He further gives us hope saying that for a ‘sexual minority’, who they are is already something nature intended. Justice Indu Malhotra too questioned the idea that homosexuality is “unnatural”, when it is present in 150 species of animals. Advocate Menaka Guruswamy also argued that the Indian Psychiatric Society had rubbished the notion that homosexuality is unnatural.
In his historic Right to Privacy judgement (2017), Justice Chandrachud wrote that the persecuted and marginalised LGBTQ community would be protected under this Fundamental Right. This alone plays a huge role in the awaited Sec. 377 judgment. But privacy is only one side of the coin. Our queerness is only as private as our ethnicity; it’s not. Advocate Shyam Divan also added that though you cannot tell a queer person on sight, as soon as their identity is disclosed they become targets.
Which is why we mustn’t try to understand ‘sexual identity’ purely in terms of sex. In such a vacuum, it is difficult to see how a single aspect of a composite individual becomes fuel for discrimination. The advocates explained that a person’s sexual orientation is, in our society, tightly wound up with issues like personal safety, employment, right to property, inheritance, equal benefits in marriage, adoption and more. Which is why Datar argued that Section 377 does not simply criminalise a sexual act, but an entire class of people.
Three advocates brought the ground reality before the Bench. Datar spoke of an incident when an airline package (where a person’s spouse to travel for free) was refused to a patron with a same sex partner.
Advocate Jayna Kothari spoke of a client who is a trans woman. She said that any sexual act between her and her husband made them vulnerable to Section 377.
And Guruswamy, appearing on behalf of ex-IIT students, drew the court’s attention to the discrimination they had faced.
What argument is complete without drawing on important judgments in the past that have changed things for the better? In addition to the Right to Privacy, Rohatgi held up the Supreme Court of Nepal’s decision to overturn anti-LGBTQ laws in 2007. He also cited the US Supreme Court’s decision in Lawrence Vs. Texas – to decriminalise homosexuality.
Likewise, advocate Saurabh Kirpal made his argument relying on the Shakti Vahini case, which protected the right to choose your partner.
In her turn, Guruswamy invoked a Canadian judgment, which had relied upon a pro-LGBTQ verdict of the Constitutional Court of South Africa. And in Datar’s he brought up Trinidad and Tobago, which had relied on our Privacy judgment to strike down their own law homophobic law
The advocates also invoked the NALSA judgment (2014), which recognised “the third gender” and their rights. In the aftermath of this, said Guruswamy, trans persons ran for public offices and earned those positions as well. If, as Rohatgi too argued, India was trying to right by the ‘T’ of ‘LGBTQ’, then why not the whole community?
Datar reminded them of the 172nd Law Commission report where the Union of India was requested to repeal Section 377. Change is inevitable.
Guruswamy pushed for the word “sex” in Article 15 to include sexual orientation as well. And that because Section 377 violated right to form an association under Article 19, it had to go. Despite ASG Tushar Mehta’s protestations, Justice Rohinton Fali Nariman listened closely.
Advocate Krishnan Venugopal argued for right to freedom of expression – dress, choosing partners, personality, even artistic expression.
Guruswamy bought up the Domestic Violence Act, which recognises live-in relationships, but exclusively covers opposite-sex couples.
In light of this, Chief Justice Misra said “A declaration to this effect that section 377 is unconstitutional will remove the ‘ancillary disqualification’ for people joining services or contesting elections. It will also no longer be seen as a moral turpitude or a crime.”
While optimism and morale is high, we must anticipate one of two outcomes, perhaps best represented by two people. One is advocate Ashok Desai, who brought books like Ruth Vanita’s “Same Sex Love in India” and Devdutt Pattanaik’s “I Am Divine”, evidence of queerness in India’s past and present. The other is ASG Tushar Mehta, who called them “obscene” and “scandalous”.
The end of this two decade long battle is night. Now all that remains is to see which viewpoint our country will become bound to.