A Moment to Breathe for the LGBT Community

On the 1st Of February, 2016, the Supreme Court referred the matter pertaining to the constitutionality of Section 377 of the Indian Penal Code to a five judge bench. Section 377 is India’s colonial anti-sodomy law that has resulted in the persecution and prosecution of LGBT persons in the country. A challenge to this section was allowed by the Delhi High Court in 2009 which was reversed by the Supreme Court on 11/12/13. The curative petition seeks to remedy this wrong and provides us with a final chance in the judicial process to strike section 377 as unconstitutional and antithetical to fundamental rights.

This referral to a larger bench could have been viewed as just another stage in the long procedural norms of the Court. However, it goes beyond that and provides a moment to breathe for LGBT persons. This is so in light of the many setbacks that the call to strike down s.377 has received since 2009. This includes the appeal in 2013 and the subsequent rejection of the review petition and more recently the refusal to even introduce a private member’s bill to remove s.377.

All this had resulted in a great sense of anxiety amidst LGBT activists who feared the worst which would have been the dismissal of the curative petition by the three judges who heard the matter yesterday. The judges have however acknowledged the constitutional importance this matter holds by referring it to a higher bench.

Groups across the country have wholeheartedly welcomed this move. The violation of fundamental rights of LGBT persons warrants nothing less than the highest attention of the Supreme Court. Further, decriminalization cannot be left in the hands of the Parliament which functions primarily on the notion of majority. A counter majoritarian concern will be left unaddressed by the parliament and hence it is all the more important that the court steps in to safeguard the rights of sexuality minorities. The fact that most countries that decriminalized homosexuality did so through its judiciary drives home the importance of the court’s role.

This referral is far from the end of a struggle that has spanned close to two decades to remove s.377 from the Indian Penal Code. The court will be hearing arguments on merits which gives us the chance to place the numerous violations of the rights of LGBT persons since the recriminalization in 2013 before it.

One can only hope that the five judge bench that will be constituted to hear the matter would see the sound legal reasoning, empathy and the progressive potential of the 2009 judgment of the Delhi High Court and uphold it.

No doubt that S.377 is intrinsically tied to the lives of LGBT persons and affects them adversely but in the event it is not discarded by the courts or otherwise, LGBT persons would continue to live and fight to diminish its relevance.

By Gowthaman Ranganathan