Sec 377: State, civil society need to step up

Ahead of the Namma Pride later this month, Deccan Herald will be carrying a series of articles on LGBTQIA+ issues. Here is the first of these, from lawyers at the Alternative Law Forum.

On 6th September, 2018, the Supreme Court of India emphatically ruled that, henceforth, same-sex sexual relationships between consenting adults are not criminal in nature. Reading down Section 377 of the Indian Penal Code, 1860, the Hon’ble Court said, “History owes an apology to the members of this community (i.e. sexual minorities) and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.” This historic judgment marked the demise of a draconian colonial law that persecuted sexual minorities in India by stripping them of their dignity, and decisional and spatial autonomy.

The legal fight against Section377 started in 1994, when Aids Bhedbhav Virodhi Andolan (ABVA) filed a petition in the Delhi High Court challenging the constitutional validity of Section 377. Unfortunately, the petition was dismissed for non-prosecution as the group had become defunct. Then in 2001, the Naz Foundation filed a petition in the Delhi High Court challenging Section 377, which was dismissed in 2004 on the grounds of “locus standi”, and later the review petition too was rejected. In 2006, Naz Foundation moved the Supreme Court challenging this rejection, and the case was remanded back to the Delhi High Court to be heard on merits. In 2009, the Delhi High Court read down Section 377 by decriminalising consensual same-sex adult sexual relationships. In 2013, the Supreme Court overturned the Delhi High Court ruling and upheld the constitutionality of Section 377. In 2016, the Supreme Court agreed to hear the curative writ petition filed against its 2013 decision. After a slew of new petitions being filed, the Supreme Court of India in Navtej Singh Johar v. Union of India (6th September 2018) ruled that the Court had erred in 2013, and should not have interfered with the 2009 Delhi High Court judgment.

Navtej Singh Johar v. Union of India is a momentous ruling because it not only decriminalizes same-sex sexual relationships between adults, but locates the idea of sexual autonomy and full moral personhood in concepts such as: Right to Privacy and Dignity, Right to Love, Freedom of Expression, Right to Life, Right to Equality and Non-Discrimination. The Hon’ble Court, invoking the idea of Constitutional morality propounded by Dr. Ambedkar, states that, “Constitutional morality requires that all the citizens need to understand and imbibe the broad values of the Constitution”. Justice Dr. Chandrachud says that India Constitution “is an essay in the acceptance of diversity” and “founded on a vision of an inclusive society which accommodates plural ways of life”.

Following the 6th of September 2018, three High Courts (Kerala, Delhi, and Allahabad) were moved by members of the LGBTQIA+ community in separate yet distressingly similar instances of abuse, blackmail and threat. The reliefs sought ranged from protection from threats and violence inflicted by family members to emancipation from house arrest. It is to be seen whether the High Courts and trial courts across the country will rise up to the lofty ideals laid down in Navtej Singh Johar in various attempts by members of the community to access justice, now that the law finally has the vocabulary to articulate their identities and loves.

It is also important to note that mental health was a key consideration in reading down Section 377. Justices Chandrachud, Nariman and Malhotra focused on the stand of the Indian Psychiatric Society, the WHO, the Mental Healthcare Act, 2017 (which came into force earlier this year) and the negative impact of the stereotyping, stigma, persecution and fear perpetuated by the existence of Section 377. Justice Chandrachud aptly notes that “medical practice must share the responsibility to help individuals, families, workplaces and educational and other institutions to understand sexuality completely in order to facilitate the creation of a society free from discrimination where LGBT individuals like all other citizens are treated with equal standards of respect and value for human rights.” It is imperative to note that it is now possible to take legal action against medical practitioners for forceful “treatment” to “cure” homosexuality.

We have unfortunately witnessed a rise in cases of inhuman assault of transgender women while navigating public spaces across Telangana, Kerala, Maharashtra and Karnataka. The role of the police can no longer remain guided by public morality and prejudice, but will have to come in line with the directions of the Supreme Court. As Justice Nariman directed, “Above all, all government officials, including and in particular police officials, and other officers of the Union of India and the States, be given periodic sensitization and awareness training of the plight of such persons in the light of the observations contained in this judgment.”

While the Navtej decision emphasises the transformative nature of our Constitution, which constantly evolves to be more inclusive, pluralistic and progressive to safeguard marginalised communities and with respect to the protection and articulation of rights historically denied to marginalised communities, no legal development, however progressive or transformative, has any meaning without simultaneous social transformation. Such transformation requires the participation of both the State and civil society. Unless the language of love and empathy contained in the judgment comes to be the norm in government agencies, the lower judiciary, the police and civil society, Navtej will go down in legal history as nothing more than a law on paper. A nuanced collective articulation of rights of marriage, inheritance, protection from assault and harassment, adoption and many more, must come from within the movement and drive further conversations on the rights of the LGBTQIA+ community.

(The writers are advocates at Alternative Law Forum, Bangalore)