Part I

AAP’s commitment towards the politics of change is on test: will it decriminalise homosexuality by amendment, if not outright repeal of Section 377 of the IPC?

AAP’s landslide victory in New Delhi has meant a reopening of shrinking democratic space. But a robust democracy itself doesn’t guarantee checks against majoritarianism, and so it is significant that AAP’s Delhi manifesto makes explicit its support of minority rights. The party’s 70 point plan includes a commitment towards development and equality for all minorities as well as ensuring the rights of the marginalised. This latter objective specifically refers to providing access to health, education and identity cards to “the long neglected transgender community”.

These are laudable goals. Yet there is a crucial legislative reform that needs to take place before they can truly be realised: the amendment, if not outright repeal of Section 377 of the Indian Penal Code. On the 11th of December 2013, the Supreme Court of India effectively recriminalised homosexuality in India through its judgment in Suresh Kumar Koushal v. Naz Foundation. In upholding the constitutional validity of Section 377 which criminalises “carnal intercourse against the order of nature”, the Court reinforced a view that considers the lesbian, gay, bisexual and transgender community as second class citizens. In the first of a two part essay, we call upon the AAP to proactively ensure that the LGBT community is not targeted under Section by way of a State-level amendment to the Indian Penal Code. In the second part of this article, we will discuss the actual procedure through which such an amendment might be legislated.

Lived reality

The re-instatement of Section 377 does not merely constitute a violation of the fundamental rights to dignity, equality and non-discrimination: it has also had violent consequences for the lived realities of LGBT individuals across the country. Since the Supreme Court’s decision, the re-instated law has been directly invoked to arrest and harass LGBT people. The period of January 2014 to October 2014 alone saw a total of 750 cases registered and 587 arrests made under the Section across the country. While we do not know exactly how many of these cases involved prosecutions of adults engaged in consensual sexual intercourse, it is clear that the overall prosecutions under the Section have dramatically increased over the last year. What is also clear is the fact that the law continues to be used as a direct and indirect tool of persecution.

A few instances will serve to highlight this pattern. On the Saturday after the release of the judgment, i.e. 14th December, 2013, two kothis were harassed and abused for spreading awareness about HIV/AIDS and safe sex. An affidavit in the subsequent review petition notes how the police told them they should stop being homosexual since the judgment had come out. Another HIV/AIDS worker in Karnataka testifies:

“We had just then received the details of the judgment at our office and I had gone to the field to check on the members of the community. To my utter shock and distress I saw two police officers beating community members. I urged the police to stop beating them and asked them why they were doing so. The officers mockingly said that I should be knowing the reason better as the news is out everywhere including the news papers, TV and everyone is talking about it. They said that they are aware of the judgment and will not tolerate seeing us in the open in spite of it.”

The Supreme Court’s judgment also resulted in a particularly vitriolic unleashing of popular prejudice: another affidavit by a gay man attests to several posters appearing in different parts of Madurai a week after the judgment calling for the death penalty for LGBT persons.

Rising incidents

Incidents of violence and abuse continued to accumulate in the course of the succeeding weeks and months. In June 2014, a gay man who was abused and assaulted by police officers after they commented on his dressing, posted about his experience online, while expressing the fear of being prosecuted under Section 377. In September 2014, a transgender person in Ajmer was forced to perform sexual acts by the police and threatened to be booked under false charges if she refused to cooperate. Later, in November, a transgender health worker named Iliyana committed suicide after being picked up and constantly harassed by police authorities. Last month, following the murder of a hijra named Pravallika in Hyderabad, the police brutally tortured a friend of hers on the pretext of investigation. This involved stripping her in order to check if she was “really a transwoman”, and forcing her to remain nude for several hours.

The cases involving the transgender community are additionally troubling given the existence of the recent NALSA v. Union of India judgment of the Supreme Court which recognised the equal fundamental rights of transgender individuals in the country. So deep rooted is the presumption of criminality under 377 that this remarkable judgment is being rendered increasingly ineffective in the face of continuing disregard for transgender rights.

In this context, we call upon AAP to make good on the promise of its manifesto, a promise that it has explicitly expressed vis-a-vis Section 377 in the past. Shortly after the Koushal judgment, the party issued a statement saying,

“The Aam Aadmi party is disappointed with the judgment of the SC upholding the Section 377 of the IPC and reversing the landmark judgment of the Delhi High Court on the subject. The SC judgment thus criminalises the personal behaviour of consenting adults. All those who are born with or choose a different sexual orientation would thus be placed at the mercy of the police. This not only violates the human rights of such individuals, but goes against the liberal values of our Constitution, and the spirit of our times.

Aam Aadami Party hopes and expects that the Supreme Court will review this judgment and that the Parliament will also step in to repeal this archaic law

This position was echoed by the AAP MP from Patiala, Mr. Dharamvira Gandhi, who raised a question on the floor of the Parliament asking about the Government’s possible proposal to amend or repeal Section 377. He received a short response in the negative from Minister of State for Home, Kiren Rijiju: that the matter was sub-judice before the Supreme Court, and that a decision regarding the Section could be taken only after pronouncement of judgment by the Court.

However, since the Supreme Court will only rule on the constitutionality of the Section, there is nothing stopping a government from actively amending it.

With its overwhelming majority in the Delhi Assembly, AAP now has the legislative authority to do just that, for the National Capital Region. It has the political and constitutional authority to restore the liberal values of the Constitution and protect the human rights of individuals at least within the NCR. The Delhi elections have shown the way in terms of a new model of political engagement, one with its ear firmly to the ground. By carving out a space in the law that puts consenting adults outside the spectre of criminality, AAP will send a clear message reiterating its commitment towards the politics of change.

Part II

Aam Aadmi Party swept to power in Delhi upon an election platform that contained explicit guarantees towards protecting the rights of minorities and, specifically, the rights of the transgender community. In Part One, we argued that there is an urgent moral need for the AAP to act upon its guarantee by decriminalising homosexuality within the National Capital Region, and thereby protecting the LGBT community from the relentless discrimination that it suffers from today. In this part, we contend that the AAP’s victory vests in it the legal and constitutional authority to bring about this change.

When an AAP member of parliament raised the issue of Section 377 in the Lok Sabha, he was informed that since the matter was sub judice before the Supreme Court, no action would be taken upon it by Parliament. Since a curative petition on the subject remains pending before the Court, technically the issue remains sub judice. The role of the Supreme Court, however, is to rule upon the constitutionality of Section 377. That does not stand in the way of the central – or state – parliaments from legislating a change into the Indian Penal Code. Indeed, in its judgment in Koushal vs Naz, the Supreme Court, while re-instating Section 377, expressly invited the parliament to change it via legislation, if it so desired. With its overwhelming majority in the Delhi Assembly, the AAP is now in a position to accept the Court’s invitation.

Constitutional power

As the single ruling party, the AAP has the constitutional power to make laws for the territory of Delhi. The source of this is Article 239AA of the Indian Constitution, which was inserted via an amendment, in 1991. This Article changed Delhi’s status from a “Union Territory” to the “National Capital Territory” and invested it with a legislative assembly, which was granted the power to make laws. Subject to a few exceptions, the assembly may legislate upon subjects contained in the State List or the Concurrent List of the Seventh Schedule to the Indian Constitution. Entry One of the Concurrent List (which contains subjects with respect to which both the central and the state government may legislate) refers to “criminal law, including all matters included in the Indian Penal Code at the commencement of this Constitution.” The upshot of this is that the Delhi legislative assembly may pass laws upon matters listed in the IPC. One such matter is “carnal intercourse against the order of nature”, presently criminalised under Section 377 of the IPC.

The presence of Section 377, however, raises the following question: to what extent is the AAP constrained by already existing criminal law? What if a state legislature was to pass a law that directly contravened the provisions of the Indian Penal Code, which is a central legislation? For instance, suppose that a state legislature decriminalised theft. More broadly, what would happen in situations where the central and state governments both have the competence to pass a law, but end up passing laws directly opposed to each other? It is here that the doctrine of repugnance steps in.

What does “repugnance” mean? According to the Supreme Court of India, three conditions must be fulfilled for repugnance to arise. First, there must be a “clear and direct inconsistency between the Central and the State Act”; secondly, this inconsistency must be “absolutely irreconcilable”; and thirdly, the inconsistency must “bring the two Acts into direct collision with each other, [so that] a situation is reached where it is impossible to obey one without disobeying the other.” The reason for such a stringent standard is that the Supreme Court will not lightly invalidate a law that is the result of democratic deliberation by the elected representatives of the people.

In this context, Section 377 occupies a peculiar position. As the text reproduced earlier notes, Section 377 does not explicitly criminalise homosexuality, instead proscribing “carnal intercourse against the order of nature”. In its judgment upholding the constitutionality of the Section, the Supreme Court expressly refused to define what acts constitute “carnal intercourse against the order of nature”, holding instead that such a determination would be made on a case to case basis (it remains a different fact that the Section is selectively enforced, both in terms of persecution and prosecution, against members of the LGBT community).

Furthermore, a few months after the decision in Koushal vs Naz, the Supreme Court undermined the foundations of that very judgment in a subsequent case called NALSA vs Union of India, where it upheld and protected the rights of the transgender community. In that case, the Supreme Court noted that free expression of one’s sexual identity was a guaranteed right under the Constitution. The judgments in Koushal and NALSA are in an uneasy tension with each other, and it seems that the only way of reconciling them is by arguing that NALSA removed the criminalisation of mere sexual identity from the ambit of Section 377.

The way out

This should make it clear that homosexuality is not a defined offence under the IPC and that, furthermore, the Supreme Court’s own jurisprudence suggests that it does not fall within the scope of Section 377. So what if the Delhi legislative assembly was to append an Explanation to Section 377? What if this new Explanation would read: “For the removal of doubts, it is clarified that sexual intercourse between consenting adults does not constitute carnal intercourse against the order of nature”? This new Explanation, which specifically decriminalises homosexuality, would not be “clearly and directly inconsistent” with the rest of Section 377, because Section 377 is silent upon the status of homosexuality. There is no collision, and it is entirely possible to obey both Section 377 and its new Explanation.

A little over a year ago, the Aam Aadmi Party issued an official statement expressing disappointment with the judgment of the Supreme Court in Koushal vs Naz. It labeled Section 377 as a violation of human rights, and expressed the hope that Parliament would intervene to repeal this archaic law. The Aam Aadmi Party is now ruling in Delhi. It has the legal and constitutional power to do (for Delhi) exactly what it asked Parliament to do last year. Its own manifesto guarantees the protection of minority communities against marginalisation. We hope that the AAP will fulfil the promise of its manifesto, and take a first step by decriminalising same-sex intercourse between consenting adults.

Published on: 23 & 24 February 2015. First published on Scroll.in here and here.