SC reconsiders gay rights laws: New hope this time
Rejecting the Center's request for a postponement, the SC has begun hearing pleas challenging Section 377. If it decides in the petitioners' favor, homosexuality will no longer be illegal in India. A five-judge bench has been constituted to hear pleas by 35 individuals and rights groups. People are hopeful: with some major developments recently, the fight for gay rights has received a boost.
Section 377, introduced during colonial rule in 1861, criminalizes any sexual activity "against the order of nature", including anal sex, oral sex, penile penetration of "artificial orifices" and "penile-non-vaginal sexual acts". If convicted, a person can be imprisoned for life or for a term up to ten years, and a fine. About 200 people have been prosecuted under Section 377 till now.
In 2001, a writ petition was filed in the Delhi HC against Section 377. It was dismissed. In 2004, the SC observed Section 377 needs reconsideration and referred the matter back to the HC. In 2009, the HC struck down the clause, but the SC overturned the verdict in 2013. In 2016, it referred curative petitions challenging its 2013 ruling to a bench.
Among the many who have challenged the court's 2013 judgment are Sangeet Natak Akademi awardee Navtej Singh Johar, chef Ritu Dalmia, hotelier Aman Nath, journalist Sunil Mehra, activists including Akkai Padmashali and Arif Jafar, a group of IITians, and groups Naz Foundation and Voices Against 377.
Several petitions argue Section 377 violates the SC's 2014 NALSA judgment, which granted equal social and legal status to transgenders. It also goes against Articles 14, 15, 16, 19 and 21 of the Constitution, impacting the fundamental rights of equality, expression and liberty, they claimed. Activist Harish Iyer even quoted ancient texts, including Bhagavad Gita. "The Kama Shastra acknowledges third-gender marriages," he adds.
This time, there's hope. Last year, after the SC upheld the individual's right to privacy, Justice DY Chandrachud observed, "That 'a miniscule fraction' (is affected by Section 377) is not a sustainable basis to deny the right to privacy." In another major development, the Indian Psychiatric Society has finally backed decriminalization of homosexuality, holding it is not a psychiatric disorder.
The Center had requested a delay till it files a comprehensive response to the petitions, but the SC refused, observing a notice had been served long ago and the response should have been ready. "If you want to file anything, file it during the hearing," it said.
The verdict can go three ways: 377 might be upheld, or abolished altogether. Another possibility is striking down the provisions criminalizing consensual adult sex. Retaining the rest will leave scope for recognition of sexual-assault of non-women victims, especially transgenders, a much-needed law. A five-judge Constitution Bench including CJI Dipak Misra and Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra will hear the matter.