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India’s Supreme Court is Reconsidering the Criminalization of Homosexuality

Amongst the chaos that ensued in the Indian judicial system during the first few days of the year, the apex court of the country has announced that it will be revisiting the criminalization of homosexuality in the country which stems from the Section 377 of the Indian Penal Code.

A three-judge bench comprising of Chief Justice Dipak Misra and Justices M Khanwilkar and D Y Chandrachud will be re-examining the constitutionality of section 377 of the IPC whose roots date back to 1860 in the days of the British Colonial Era. The phraseology of Section 377 criminalizes “carnal intercourse against the order of nature” and punishes the offender with “imprisonment for life, or with imprisonment of either description for a term which may extend to ten years while also making them liable to fine.”

The fight for LGBTQIA+ rights in the country has been a long and tedious one filled with social barriers and legal connotations. In July of 2009, the Indian Gay Rights Movement gained immense momentum when the state High Court of Delhi decriminalized homosexuality among consenting adults, holding it in violation of Article 14 (equality before the law), Article 15 (prohibits discrimination on grounds of religion, race, caste, sex or place of birth) and Article 21 (guarantees protection of life and personal liberty) of the Constitution of India. In their 105 page judgment, the bench clearly stated,

“Section 377 denies a gay person a right to full personhood. Moral indignation, howsoever strong, is not a valid basis for overriding individuals’ fundamental rights of dignity and privacy. In our scheme of things Constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view.”

Three years later, in an earth-shattering judgment by Justice G.V Singhvi, the Supreme Court overturned the 2012 judgment upholding the constitutional validity of Section 377 thus criminalizing acts of homosexual nature based on a challenge on the grounds of public morality which was filed by religious bodies and individuals. Justifying its ruling, the bench said, “The previous judgement overlooked that a minuscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years, less than 200 persons have been prosecuted for committing an offense under Section 377.” After the judgment, many activists claimed the court had looked through the fact that Section 377 is regularly used to blackmail and intimidate LBGTQIA+ Indians and stymie HIV/Aids prevention efforts. Many social activists have also gone on to discard the argument that decriminalization of homosexuality in the country will lead to the infringement on the religious morality of the majority as Hindu scriptures and epics are repeatedly seen to reference to same-sex intercourse and comfortably accommodate the idea of people transitioning gender. To the disappointment of many, the judicial system also passed the ball in the legislative wing of the country saying that the legislature being the undisputed representatives of the people of India should be the ones deliberating on the issue.

Three years down the lane, in 2017, the Supreme Court, in its landmark judgement, held the Right to Privacy as a Fundamental Right while also observing sexual orientation as an essential attribute of privacy. It stated that the “right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.” This judgment implicitly overruled the previous judgment and is expected to be the basal point of the petitioners’ argument in the review hearing. The order to revisit the 2013 ruling came on a petition filed by Navtej Singh Johar, a Bharatnatyam dancer, journalist Sunil Mehra, restaurateur Ritu Dalmia, hotelier Aman Nath of the Neemrana chain, and Ayesha Kapur, a psychology graduate.

India’s ruling Bhartiya Janata Party has been hostile towards the gay rights issue in the country, something that can be accredited to its loyal orthodox conservative voter base which thrust the party into power in 2014. On the other hand, Indian National Congres: India’s main opposition party which also happens to be India’s oldest political party has recently added the ‘Overturning of Section 377’ in its election manifesto which can be decoded as a move by the party committee to consolidate the smallest of minorities in order to increase their seat count in the coming general elections of 2019. With the exception of one Member of Parliament — Mr. Shashi Tharoor, the opposition has been unwilling to burn their political capital for the issue.

Despite the lack of political backing and legal barriers, the LGBTQIA+ community continues to quietly thrive in the country and has grown ever since the first gay pride parade which had just a few dozen marchers in Kolkata in 1999.

As India waits for the apex court’s final judgement on the legality of the existence of LGBTQIA+ Indians and their way of being, the world is watching closely. Will India, a state which continuously claims itself to be a champion of equality, democracy and acceptance in the global village, continue to deny the basic fundamental rights to a fragment of its population due to the virtue of their petite percentage in the population or simply for the sake of political correctness? While the whole world glides out of the closet and progresses on the roads of acceptance and universal love, will India be brave enough to come out?

Photo: Deniz Yılmaz Akman/Flickr

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