While LGBT community celebrates the 5th anniversary of the historic Delhi HC judgment, the Road ahead still remains unclear

Five years have passed since the historic Delhi High Court judgment in 2009, wherein the Court decriminalized unnatural intercourse to the extent of its application to voluntary carnal intercourse between consenting adults, terming it a violation of an individual’s Fundamental Rights as enshrined under Article 14, 15 and 21 of the Constitution of India.

The lesbian, gay, bisexual and transgender community still celebrates this judgment as a phase of momentary freedom that they felt-- freedom to embrace their sexuality without the fear or guilt of being treated as a criminal.

The Union of India did not appeal this decision. However, 15 Special Leave Petitions were filed in the Supreme Court appealing against the said decision on behalf of mostly religious groups from all over India. 7 intervention applications (I.A.s) were also filed; out of which, 5 I.A.s were in support of the High Court judgment while 2 I.A.s were against the decision. The subsequent Supreme Court judgment in 2013 reinstated the ban on unnatural sex. This came four years after the decriminalization, which had helped to give a voice to the LGBT community in the world’s largest democracy, pushing them back into murky gallows of abjuration.

Activists have since considered this Supreme Court judgment as a contradiction between the ground reality of modern India and a legal system that’s stuck in the nineteenth century Britain. Advocate Vrinda Grover deems it not only as a contradiction with the ground reality but also being against the Constitution of India. While talking to Live Law, she mused on the difference in interpretation of the Constitution being undertaken by the Supreme Court, when it accorded recognition to trans-genders using the same Constitutional provisions. She says that “these different interpretations are affecting the Fundamental rights of a very large number of people,” adding that the Fundamental Rights of the LGBT community have been jeopardized by the Supreme Court. She hopes that the judges of the Supreme Court will interpret the Constitutional provisions correctly in the pending curative petition.

On 15^th April this year, in the case of National Legal Services Authority (Nalsa) v. Union of India another bench of the Supreme Court, comprising of Justice Radhakrishnan and Justice A.K. Sikri granted third gender status to transgenders, asserting that that they must be guaranteed healthcare, jobs and education by both the states and centre. It said, “Discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution.”

However, while discussing the parallels being drawn between the two judgments with Live Law, Justice Radhakrishnan emphasized that the National Legal Services Authority case is concerned with an altogether different issue pertaining to the constitutional and other legal rights of the transgender community and their gender identity and sexual orientation, as observed in the judgment as well. He emphasizes that both the judgments adopt different reasoning and hence, shouldn’t be compared in order to determine the validity of either.

Section 377 of the Indian Penal Code criminalizes sexual activities which are “against the order of nature” and reads as follows:

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 term which may extend to ten years, and shall also be liable to fine.

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

It imposed a blanket ban on all penile-non-vaginal sexual acts under the rubric of “unnatural offences”. It initially covered only anal sex, but later included oral sex and penile penetration of other artificial orifices.

It did serve a useful purpose in cases of sexual assault and abuse. However, criminalization of private, consensual same sex conduct under the purview of the provision has made it a weapon for abuse of the people of the community, as also a medium for justifying the social stigma that the people belonging to this community have to face every moving minute, in the world’s largest democracy.

Many people in India still perceive homosexuality as a disease, even after psychology and psychiatry treat it as an expression of sexuality. The stigma and prejudice perpetuated a culture of silence around homosexuality and resulted in defiance and denunciation at home along with bias at work and public places.

The law is clearly a vestige of the colonial times, criminalizing a whole range of sexual acts, since the only ingredients required to prove guilt in such cases is ''carnal intercourse with penetration'' and ''if it is against the order of nature''. While justifying the decriminalization, the petitioners had vigorously stressed before the court that no aspect of one’s life may be said to be more private or intimate than that of sexual relations, and since private, consensual, sexual relations figure prominently within an individual’s personality, they are an inalienable component of the right of life.

The fight for decriminalization was actually initiated by AIDS Bhedbhav Virodhi Andolan in 1991. Their historic publication Less than Gay: A Citizen's Report spelled out the problems with 377 and asked for its repeal. A 1996 article in Economic and Political Weekly by Vimal Balasubrahmanyan titled 'Gay Rights in India' chronicles this early history.

The struggle was then perked up in 2001, with the NGO, Naz Foundation filing a PIL for legalization of gay sex among consenting adults. This was rejected by the Delhi High Court. A review petition was also subsequently dismissed. Activists then approached the apex court which directed to High Court to reconsider the case on merit.

In an open letter, more than 100 influential signatories, including the Nobel laureate economist Amartya Sen, the Booker prizewinner Arundhati Roy, and author Vikram Seth, said the law had been used to "systematically persecute, blackmail, arrest and terrorize sexual minorities" and had spawned fanaticism.

This was followed by rigorous arguments by both sides and finally led to the High Court Bench, comprising of Justice Ajit Prakash Shah and Justice S. Muralidhar, legalizing gay sex among consenting adults.

The Centre was in an uncertain position, with the Ministry of Home Affairs maintaining a contradictory stand to that of the Ministry of Health. The applicability of the provision to non-consensual non-vaginal intercourse and intercourse with minors remained the same.

The verdict saw a carnival from the supporters of the community, when the members of the community came out in the open, without any fear of social stigma. The judgment was seen more like their acceptance by the society, than the mere legalization certain of sexual acts.

The verdict also witnessed opposition from a section of the society, largely the religious bodies. Baba Ramdev asked, “What is the contribution of homosexuals to the world, in the field of science, economics, etc? If our parents had been homosexuals, then we would not have been born. So it’s unnatural.” Some others claimed that legalizing carnal intercourse between consenting adults, would complicate the law and order situation of the country.

However, this verdict was subsequently over ruled by a Supreme Court bench comprising of Justice G.S. Singhvi and Justice S.J. Mukhopadhaya, in the case of Suresh Kumar Koushal and Anr. v. NAZ Foundation and Ors. over-ruled the High Court judgment. While confirming the constitutionality of the provision, the court at the end stated that, “Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same...”, leaving it open for the legislature to make any changes as deemed fit.

NLU, Delhi Professor, Dr. Mrinal Satish explains that we acquired the penal code in 1860 and it had section 377. The

Constitution of India came to picture in 1950. Hence, this law just doesn’t stand the test of time. The apex court didn’t agree with the Delhi High Court ruling that section 377 from a constitutional perspective, should be struck down to the extent of its application to consensual sex between adults. He says that legally speaking too, it’s unconstitutional and should not exist.

He draws our attention to cases where the judiciary has exercised restraint, like several sexual offences cases where the judiciary had observed that the definition of such offences need to be expanded, but left it to the legislature for further consideration. However, while breaking down the Supreme Court judgment in an article, he did assert that, in holding the decision of the High Court to be wrong, the Supreme Court does not even attempt to engage with and negate the reasoning of the High Court, which ought to be done when overruling a case. The progressive interpretation of the Constitution by the Delhi High Court which impacted not only Section 377 but also had wide ranging ramifications for India's equality, privacy and dignity jurisprudence, has been negated by the Supreme Court.

Lawyer and human rights activist, Vrinda Grover feels that the Supreme Court cannot pass off its responsibility. She asserts, “When people have come before the Supreme Court, asking for protection of their Fundamental Rights, the Supreme Court cannot say that the legislature should do the needful. It’s not appropriate in our Constitutional Scheme for the judiciary to pass off the burden of protecting Fundamental Rights to another organ of the State.”

It needs to be understood that repealing Section 377 would not just contribute to the removal of social stigma, but would also enable better access to HIV/AIDS prevention facilities. The sexual activities proposed to be decriminalized, carry a higher risk of exposure to sexually transmitted diseases as compared to heterosexuals. But use of condoms and promotion of other can prevent such diseases. However, the criminalization of such acts makes them hesitant to come ahead for treatment of STDs, as also prevents any social organization from coming to their rescue. National Aids Control Organization (NACO) estimates that India is home to 2.5 million MSMs of which 100,000 are at high risk of contracting HIV due to multi-partner and commercial sexual practices. Already, 15% of this community has got infected with the deadly disease.

A review petition was filed in January, before Justice Mukhopadhaya and Justice H.L. Dattu, but it was subsequently denied. The curative petition is still pending before the apex court. A four-judge bench comprising of former Chief Justice P. Sathasivam and Justices R.M. Lodha, H.L. Dattu and S.J. Mukhopadhaya had considered the plea for an open hearing of the curative petition filed by the Naz Foundation Trust, filmmaker Shyam Benegal, parents of lesbian, gay, bisexual and transsexual persons, academicians, mental healthcare professionals and Voices Against 377, an umbrella of non-government organizations.

According to Anand Grover, the rationale of reading both gender identity and sexuality into the Constitution is the groundwork to reopen the case. However, chances of a favorable outcome of the curative petition are seen by many as being very slim. Only two petitions have been admitted since its creation by the Supreme Court in 2002.

The Supreme Court had observed in its verdict that “competent legislature should be free to consider the desirability and propriety of deleting section 377 or amending the same.” If the curative petition is also dismissed, the only ray of hope for the community would be the political class stepping in to pass a progressive law in Parliament, legalizing gay sex.

Congress top bosses have gone on record to say that they were disappointed with the Supreme Court judgment. However, leaders of the ruling BJP has time and again stuck to its stand supporting the Supreme Court verdict. While in the opposition, Home minister Rajnath Singh had told media-persons back then that he supported Article 377 since homosexuality was an unnatural act and could not be supported.

WBNUJS Professor, Shameek Sen thinks that the Supreme Court has certainly deviated from the trend and played it

safe.  While talking to Live Law, he asserted that, “since this issue was something that involves a lot of political ramifications and social ramifications, I feel that probably the Supreme Court played it safe, leaving it up to the legislature,” adding that the legislature assumes a special position to judge the mindset of the people. He says that the restraint shown by the judiciary was unforeseeable, more so in the fact that the Delhi High Court judgment was remarkable. It was path breaking.

With regard to the curative petition, he draws our attention to the grounds of filing the curative petition. Legally speaking, he doesn’t think that the judgment has a problem. He stresses that the judgment might be called an outdated judgment, but judging by technicalities, which a curative petition strives to correct, there are slim chances of it being of any help in the instant matter. He recommends representations to the Government, however, in the light of the fact that BJP has been supporting the Supreme Court verdict, the matter seems to have reached a complicated state.

With the petition pending before the court, the LGBT community still hopes for a change, for recognition of their Fundamental Rights. By overturning the Naz Foundation judgment, the Supreme Court has, in one sharp blow, again reduced LGBT persons to the status of what the Delhi High Court memorably called ‘unapprehended felons’. Additional solicitor general Indira Jaising in a discussion with CNN-IBN stated that, "Court exists to end tyranny of the majority on the minority." Only time will show which one reigns supreme.