Ruling in India Not the Last Word

The following piece was written by Gowthaman Ranganathan and first published in the Gay and Lesbian Review on 25 June 2014.

“NO GOING BACK!” The message was clear after the Supreme Court of India’s decision to recriminalize homosexuality by reversing the judgment of the Delhi High Court that decriminalized adult consensual same sex acts in private. The complete reversal of the Delhi High Court’s progressive judgment came as a shock to the Indian LGBT community.

However, after momentary despair, anger, and fear, LGBT people took to the streets in an unprecedented show of dissent and defiance to the regressive verdict of the Apex Court. Activists, allies, and members of the community were clear that all that was done after 2009 when the Delhi High Court granted full and complete citizenship to queer persons will not be undone by the Supreme Court. The community showed a complete refusal to be pushed back into the closet or be dismissed as the “minuscule minority,” a phrase used by the Supreme Court to describe them.

Needless to mention, the legal battle is only one aspect of the struggle, and engaging with science, religion, and family are connected and parallel to the struggle against Section 377. However, my focus will be on the legal situation in India today with an eye to the historical background for recent legal developments.

Section 377

The contemporary queer movement in India can be traced back to the mid 1990s. A primary facet of this movement has been its struggle against Section 377 of the Indian Penal Code, 1860, which is India’s anti-sodomy law. This law is the only section under the chapter titled “Unnatural Offences” in the Penal Code. The law is contained in four lines and reads thus:

Section 377: Unnatural Offences: whoever, voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation: Penetration is sufficient to constitute carnal intercourse necessary to the offence described in this section.

The section is a colonial import whose birth in 1860 came at a time long before India attained independence in 1947. Its colonial nature is the beginning of the problem. The section does not take into consideration consent or age and is a blanket provision against certain vaguely defined sexual acts that have been clumped together as “carnal intercourse against the order of nature.” While on its face the provision appears neutral with respect to sexual orientation, in its application has almost always been used exclusively against members of the LGBT community, in effect criminalizing gay people and not merely certain sexual acts. There is no clarity as to what acts are covered under this section even now. The Supreme Court has left it to be decided on a case-by-case basis. However, nonprocreative sex and sexual acts imitative of penile-vaginal intercourse are a few tests that have been employed in the past.

One perennial argument for retaining section 377 was that there were no other laws on the books that protected children from sexual abuse. However, there is now a separate law, the Protection of Children from Sexual Offences Act, 2012, which penalizes sexual offenses specifically against children. It is also important to note that the anti-377 forces have only demanded that the section be “defined down” so as not to apply to consenting adults in private, not to repeal the law entirely. This is because otherwise there is no statute that outlaws sexual assault by a man upon another man or by a man upon a gender-queer person.

The Delhi Court and Inclusivity

A constitutional challenge to Section 377 was made by the Naz Foundation India before the High Court of Delhi in 2001. The Naz Foundation works on HIV prevention and was not allowed to distribute condoms at Tihar Jail, India’s largest prison, as the authorities felt that it would amount to facilitating an offense under Section 377. After a long spiral of litigation, Justice A. P. Shah and Justice S. Muralidhar delivered their verdict on July 2, 2009. In an extremely progressive judgment, the Delhi High Court interpreted the provision as not applicable to consenting adults in private. The judges based their reasoning on an inclusive human rights framework.

The court held that 377 violates Article 14, Article 15, and Article 21 of the Constitution of India, which guarantee the right to equality, freedom from discrimination, and the right to life, which includes the right to dignity and the right to privacy. The judgment was based on an ethos of inclusivity, thus opening the jurisprudential imagination to a range of claims by LGBT persons as well as other marginalized groups. The court stated:

If there is one constitutional tenet that can be said to be the underlying theme of the Indian Constitution, it is that of “inclusiveness.” This Court believes that the Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed literally in every aspect of life is manifest in recognizing a role in society for everyone. Those perceived by the majority as “deviants” or “different” are not on that score excluded or ostracized.

It is noteworthy that the judgment came just a few days after pride marches were held in three cities, including Bombay, Bangalore, and Kolkata. LGBT persons broke into celebrations welcoming the expected judgment against 377. Emboldened by this expectation, queer persons have come out to their parents and at their workplace, and some have gone on to publish magazines and embrace their sexuality wholeheartedly. Since 2009, pride marches have seen increasing participation, and the community has made its presence felt in music, visual art, and literature. Heartfelt thanks were sent to the two judges who had encapsulated all that was wrong with Section 377.

The celebrations continued despite the fact that the plaintiff in the case, astrologer Suresh Kumar Koushal, went on to appeal to the Supreme Court against the judgment of the Delhi High Court. It is important to note that the Union of India did not appeal.


The Ruling and Its Aftermath

At the Supreme Court, Koushal’s side argued that homosexuality was against Indian culture. He was joined by various religious groups and the Delhi Commission for Protection of Child Rights and an AIDS denialist organization. Supporting Naz Foundation India as respondents in defense of the lower court’s ruling were parents of LGBT persons, mental health professionals, legal academics, and noted filmmaker Shyam Benagal. The testimonies by the parents recorded as affidavits stated that their children are law-abiding citizens and are far from being criminals. Further, they stated that they enhance the social fabric rather than destroying it. The mental health professionals submitted that homosexuality is no longer considered a mental disorder.

Despite shocking testimonies by persons who faced persecution as a result of 377 and the voluminous literature—cultural, literary, and scientific—placed before the Supreme Court, the Court reversed the judgment of the Delhi High Court and recriminalized homosexuality on December 11, 2013. The court refrained from their role of judicially reviewing the validity of Section 377 and instead pushed the onus to amend the law onto the Parliament to dispose of as it deems fit. Thus the judges arrived at the conclusion on narrow technical grounds, turning a blind eye to the material placed before the court.

The judgment was received by a wave of protest globally. The “No Going Back” campaign was launched immediately. The campaign symbolized the sentiment prevalent in the gay community then and now. LGBT persons refused to be forced into the closet and were out on the streets to disprove the Supreme Court’s claim that they comprised only a “minuscule minority.” The protests were filled with rage and anger, which soon gave way to hope, as there were voices against the judgment from allied human rights movements, politicians, lawyers, international organizations, and others. The protests were also unique and powerful in their approach. For instance, at the protest at Bangalore, which saw thousands of participants, a copy of the Manusmriti, an ancient Hindu text holding regressive cultural ideas, was burned along with an effigy of Section 377. With the judgment the LGBT movement received a new vigor and was supported and informed by other human rights struggles.

Numerous letters were written by LGBT persons, their allies, and their parents across the country. The letters were addressed to the chief justice of India and urged the Court to reconsider its judgment. The main theme of these letters was a plea to the court that it not criminalize love. One letter by the mother of a gay person said: “In the dusk of our lives, please grant us the peace of seeing our children laugh and live as equal citizens with dignity, just as we have, and facilitate them to be the guiding light to other victims of oppression.”

However, there was also a sense of apprehension and anxiety that crept in after the ruling. Counselors reported an increase in calls from parents of gay people inquiring about a possible backlash as a result of the recriminalization. HIV intervention organizations also faced abuses from police in the course of their work. All these concerns were recorded by way of affidavits, and a review petition was filed before the Supreme Court to reconsider its judgment. The review petition was dismissed without an open court hearing in the chambers of the judges in no time. As for the legislative path suggested by the Supreme Court, decriminalizing homosexuality in the Parliament is a fairly remote prospect at this time.


Silver Linings

Despite setbacks, the LGBT community in India has remained strong and hopeful, which is evident from the fact that the recent pride march in Bombay, the queer film festival in Bangalore, and the pride march in Hyderabad all went on in full vigor, notwithstanding potential threats. We have now successfully approached the Supreme Court with a “curative petition” such that a full bench of the Apex Court, which will consists of five judges instead of three, will hear the case in an open court. We are awaiting the next date for the hearing. Meanwhile engagement and conversations through media, support groups, and non-governmental organizations continue.

Since the 377 ruling, the Supreme Court has delivered its decision in a case pertaining to transgender rights. It provides for a rights-based framework for trans persons to make a claim for full and complete citizenship. The judgment acknowledges the discrimination against trans persons by the state and society and provides for a mechanism for redress (albeit through elaborate recommendations made by a committee constituted for the same). Though the judges declined to comment on Section 377, they do observe that it has a colonial mark. This observation, and the fact that an open court hearing in a curative petition has been granted, gives us hope.