Section 377: Today’s Talk on Editorials
Significance: Supreme Court had decided to reconsider its’ 2013 decision to criminalise gay sex. Chief Justice of India Dipak Misra spoke up for the rights of sexual minorities to lead a life free of threats and harassment and a life of dignity under Article 21 of the Constitution when he said that no individual or section of individuals should live in a state of constant fear over their personal choices.
What was held in 2013 judgement?: The Delhi high court in 2009 had ruled that Section 377 of the Indian Penal Code (IPC), which criminalizes sex between adult homosexual men, was unconstitutional. In 2013, Supreme Court had overturned the Delhi high court verdict that had set aside an archaic colonial law framed in 1860 and decriminalized consensual sex among adult homosexual men.
The judgement of Supreme Court also noted that Parliament, the representative body of the people of India, has not thought to delete the provision. Supreme Court has noted that executive can bring the necessary amendments to the law concerned with homosexuals.
Justifications of 2013 judgement by Supreme Court:
- Valid under Constitution: The laws enacted by Parliament are presumed to be valid under the Constitution. In order to hold a law to be invalid, it must be shown through evidence that the law is violating the Constitution. The Supreme Court held that there is not enough evidence to show that Section 377 of IPC is invalid under the Constitution.There must be something in the nature of the law itself that is an unconstitutional and mere misuse of law cannot be stated as a reason to decriminalise the section.
- Not targetting any class: Section 377 speaks about sexual acts and does not speak about sexual orientation or gender identity. This would mean that even heterosexuals indulging in acts covered under Section 377 would be punished. Therefore Supreme Court argued that the section does not target LGBT persons as a class.
- Cannot compare international cases: Delhi High Court used the comparisons of rights of LGBT persons on cases from other countries. But Supreme Court opined that cases from other countries cannot be directly used in the context of India. Therefore, important cases from South Africa, Fiji, Nepal, USA etc where homosexuality was decriminalized was not taken into account by the Supreme Court.
Analysis of the judgement: The decision of the Supreme Court was received by a wave of protests spanning across the country. People across a spectrum of sexuality and gender identity were shocked and felt betrayed by the guardian of fundamental rights. Naz Foundation, the non-governmental organization (NGO) which filed a lawsuit in the Delhi high court in 2001 said that India has been set back by a hundred years.
- Not inclusive: Supreme Court held that the LGBT community is an extremely tiny and they form a part of a minority. This is wrong on the basis of data as well. However, even if the population of LGBT people is less, the judgement should have been inclusive in nature.
- Violation of rights: Supreme Court has failed in its decision to understand the scale of misuse of Section 377 by the police against people of the LGBT persons. The Supreme Court held that there are less than 200 cases of prosecution under the Section since 1860. However, this is wrong because it does not include the number of police.
complaints, arrests or harassment on the basis of this Section.
- Not international standard: The Supreme Court is wrong in its application of laws from other countries. It does not consider the fact that same-sex acts have been decriminalized in a lot of countries, including the UK and the USA. The Supreme Court should have considered the decisions from other countries as it always has been doing. In this case, the Supreme Court ignored foreign decisions.
- Inconsistent use of judicial review: The Supreme Court held that the law should be changed by Parliament and not the Court. It is the duty of the Court to restrict or strike down a law which is against the Constitution. The Supreme Court had to do that in this case which it failed to do resulting in a denial of rights for the many.
- Legislative Amendment: The decision of the Supreme Court has been criticized by every part of civil society. Political parties, journalists, academics, activists, lawyers and citizens have criticized the decision. The Supreme Court has itself stated that Parliament might consider amending Section 377. Parliament can amend Section 377 to ensure that same-sex consensual conduct between adults in private is no longer a crime.
- Petitions: Curative petitions can be used as a tool against the Supreme Court judgement. The petitions have already resulted in a bench comprising Chief Justice Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud to transfer the issue arising out of Section 377 of the Indian Penal Code to a larger bench. The bench was hearing a fresh plea filed by Navtej Singh Johar.
Conclusion: Supreme Court’s decision to admit a curative petition on section 377 is a positive development. The apex court has another chance to correct a grave error, which continues to put LGBT people under physical, mental and legal threat. With the Supreme Court readying itself to review Section 377 again, India must try and rid of itself of its bigoted and patriarchal ways and become more inclusive.