Shashi Tharoor submits private members bill to scrap S.377; Jaitley, Chidambaram and Bhushan opine SC must review Kaushal Judgment

Speaking at Times LitFest on Saturday, Finance Minister Arun Jaitley and his predecessor P. Chidambaram have unanimously come out in support of the rainbow pride, saying that the 2013 judgment upholding Section 377 of the Indian Penal Code needs a relook.

Clarifying that they were speaking in their individual capacity, the two top leaders from BJP and Congress were of the view that the Delhi High Court judgment should not have been reversed by the Supreme Court. Mr. Jaitley was quoted as saying, “When millions of people world over are having alternative sexual preferences, it is too late in the day to profound a view that they should be jailed. The Delhi High Court’s view appears more acceptable.”

Mr. Jaitley was of the view that had the judgment come 50 years ago, it would have been understandable, but with the universal movement towards acceptability, the Apex Court judgment was reflective of the Indian society’s archaic view. “The Court was not dealing with any personal law and was on the issue of order of nature and the Delhi High Court has held that it was not an offence. The SC took a very conservative approach on the issue and the judgment needs to be reconsidered,” he said.

Meanwhile, Mr. P. Chidambaram echoed the Finance Minister’s personal opinion and said that the Delhi High Court verdict was a great step, and the SC should not have overturned it since section 377 is “illiberal and has no place in the 21st century”.

Extending his support, Congress MP Shashi Tharoor later tweeted that he had submitted in the Parliament ten days ago, a private member’s bill to decriminalize consensual sex between adults of any gender. “Hope it will be admitted,” he tweeted.

AAP and Left also said that they would support the Centre if it took steps to repeal the section. In this regard, a group of lawyers had submitted a proposal to the Delhi Government, suggesting ways in which homosexuality can be legalized in Delhi, irrespective of the Centre’s stand on the same. “We have submitted a proposal by which the Delhi assembly can issue a clarificatory amendment saying consenting same-sex intercourse between adults does not constitute carnal intercourse against the order of nature. The Delhi assembly can amend the IPC since it is in the concurrent list and does not contradict the central law,” lawyer Gautam Bhatia said.

Activist Lawyer Prashant Bhushan also welcomed Mr. Jaitley’s views, opining that the Government can delete Section 377, instead of waiting for the Supreme Court to review its verdict. Mr. Bhushan was quoted as saying,“I am glad that Mr. Jaitley for once is saying the right thing that (article) 377 today is an anathema to our liberalized recognition of the fact that there are 10% people in the world who are born gay. Therefore, you cannot criminalize them. So, it is unfortunate that the Supreme Court overturned the excellent judgment of the High Court holding 377 as unconstitutional.”

Communist Party of India leader D. Raja also came forward, asking the NDA Government to initiate the process of amending Section 377. He was of the view that being a senior minister, if Mr. Jaitley holds such a view, he must initiate the process with his own government to take up the issue with judiciary at appropriate level in order to bring suitable amendments and ask judiciary to make suitable observations.

Senior Counsel, Anand Grover congratulated Mr. Jaitley and Mr. Chidambaram for taking such a “bold step”.Addressing the ambiguity with regard to the stand of the Government on the issue, he was quoted as saying, “This ambiguity is not confined to only the ruling party. It is across all political parties. But you have to see that Mr Jaitley is a minister and a very important person in the government. I think for him to make such a statement, it carries some authority. It has certainly given a new hope. They have to resolve the problem within their party as do other parties.”

Six 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 wedged in the nineteenth century Britain.

With the political honchos endorsing the progressive ideology of the rainbow pride, the LGBT community also stepped forward on Sunday, demanding a discussion in the Parliament on Section 377. Scores of activists took to the streets of Delhi, celebrating the 8th Delhi Queer Pride parade from Barakhamba Road to Jantar Mantar, chanting the slogan- hum leke rahenge azaadi. Transgender rights activist Laxmi Tripathi told ANI, “Section 377 must be discussed in the Parliament. It should not be considered on morality value, but as a human and constitutional right. Section 377 should be dismissed.”

“If Jaitley ji has said that the matter should go up to the Supreme Court and the court should decide this...the court has said the Parliament should see to it. The government and the court should not play this ball game with our society and with people's freedom and democracy,” Tripathi added.

Several participants of the parade were however still suspicious of the ruling BJP’s motive and didn’t trust Mr. Jaitley’s statement. A participant was quoted as saying, “We want to tell him that it’s not enough to just talk about 377 when casteism and communalism is rampaging.”

Political leaders coming out in support of the movement certainly ignites a new ray of hope for the rights activists. However, it is time for concrete steps to be taken in the direction of liberation of the LGBT community from the brunt of societal bigotry that they are made susceptible to.

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