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The Supreme Court’s refusal to review its controversial decision in December reinstating a 153-year-old law that criminalises homosexuality is disappointing.
The apex court is known to have overturned retrograde decisions by lower courts in the past. It has made progressive pronouncements on an array of social issues too. However, on the question of homosexuality it has taken a regressive stand. First, it overturned a 2009 Delhi high court ruling that decriminalised homosexuality and upheld a colonial-era law that treats same-sex relationships between consenting adults as a crime. The decision to recriminalise homosexuality was widely criticised as it discriminated against the lesbian, gay, bisexual and transgender (LGBT) community. The SC justified its decision by claiming that Section 377 of the Indian Penal Code was not unconstitutional – a flawed argument as our constitution guarantees every citizen the right to equality and non-discrimination. Many were hoping that the SC would rethink its decision. It has dashed their hopes by refused to do so, arguing again that Section 377 does not suffer from any constitutional infirmity.
With the SC refusing to review its decision, two options remain -- filing of a curative petition in the SC and amending the law in Parliament. Both routes are fraught with problems, the latter more so at the moment. With general elections due in a few months, political parties, especially conservative ones, may not be willing to support a law decriminalising homosexuality as it could alienate their voters. Following the SC ruling in December, reports in the media suggested that the UPA government was considering the ordinance route to amending this archaic law. Whether it will walk its talk now and follow up on the promise it made to the LGBT community remains to be seen.
Gay rights activists have pointed out that many gays came out with their sexual orientation when the Delhi court decriminalised homosexuality. They are now vulnerable to jail terms. This underscores the need for urgent steps. At present, the parliamentary route to changing the law appears a long-drawn process. In the circumstances, the curative petition route while complicated – it will be heard only if a majority of judges decide that the matter needs to be heard – may be the best bet. The country’s LGBT community is looking to the judiciary again to right the wrong done to sexual minorities by Article 377. This archaic law has no place in a free country in the 21st century.