 "Supreme Court to take final call on Section 377 today")
The Supreme Court today is set to hear a curative open court petition challenging its 2013 verdict re-criminalising homosexuality in the country.
A curative petition is the last legal recourse available to litigants. In rare cases, such petitions are given an open court hearing.
A bench headed by Chief Justice TS Thakur has agreed to hear the curative petition filed by gay rights activists and NGO Naz Foundation against the apex court which had reversed the Delhi High court's 2009 decision on December 11, 2013, upholding validity of section 377 (unnatural sexual offences) of IPC.
The law
Section 377 of IPC is a pre-independence era law which came into force in 1862, and defines unnatural offences. The act mentions, “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 a term which may extend to 10 years, and shall also be liable to fine.”
A long legal battle and the Delhi High court's decision
More From This Section
A movement to repeal Section 377 was initiated by AIDS Bhedbhav Virodhi Andolan in 1991. However, as the case prolonged, it was taken up by the Naz Foundation (India) Trust, a LGBTQ activist group, which filed a public interest litigation (PIL) in the Delhi High Court in 2001, seeking legalisation of intercourse between consenting adults of the same sex. The Delhi High Court in 2003 refused to consider a petition regarding the legality of the law arguing that the petitioners had no locus standi in the matter. Naz appealed to the Supreme Court which decided that the activists did have the standing to file a PIL in this case and sent the case back to the Delhi High Court.
On July 2, 2009, the Delhi High Court overturned the 150-year-old law; in a 105-page judgement, a bench headed by Chief Justice Ajit Prakash Shah and Justice S Muralidhar, said that if not amended, Section 377 of the IPC would violate Article 14 of the Indian Constitution, which states that every citizen has equal opportunity of life and is equal before the law.
SC re-criminalises homosexuality
Since the de-criminalisation in 2009, many homosexuals had come out in the open about their sexuality and relationships. But in a stunning reversal, the Supreme Court struck down the Delhi HC verdict in December 2013. An SC bench headed by Justice GS Singhvi (since retired) upheld the validity of Section 377, and referred the matter to Parliament, asking the legislature to take a call on the provision.
The central government filed a review petition on 21 December 2013, in which it clearly stated, “The judgment suffers from errors apparent on the face of the record, and is contrary to well-established principles of law laid down by the apex Court enunciating the width and ambit of Fundamental Rights under Articles 14, 15 and 21 of the Constitution.” This review petition was bolstered by one from the Naz Foundation. On January 28, 2014, however, the Supreme Court dismissed both review petitions.
SC verdict on transgenders
In a landmark judgement in April 2014, the Supreme Court directed the government to declare transgenders a ‘third gender’ and include them in the OBC quota. Underlining the need to bring them into the mainstream, it said they should have all rights under law, including marriage, adoption, divorce, succession and inheritance, the Hindustan Times reported.
Child Abuse and 377
While the Delhi HC's verdict de-criminalising homosexuality was criticized b6y child-abuse activists on the ground that Section 377 was needed to tackle cases of child abuse, the enactment of the Protection of Children from Sexual Offences (POCSO) Act 2012, there doubts too have been addressed. POCSO is more child-friendly and much more stringent.
Implications for the LGBTQ community
Business Standard reported on December 13, 2014 that since the 2013 judgement several cases have been reported of Section 377 being used to blackmail and harass members of the LGBTQ community. While this continued into 2015, the year also saw a consolidation of opinion against Sec. 377, both in the political and social sphere. Gay Pride marches in major cities like New Delhi, Mumbai, Kolkata and Bengaluru became the most visible and popular signs of protest. In popular media, advertisers, filmmakers and book authors came out in support of gays. On Twitter, that seemingly final arbiter of public opinion in the 21st century, #comingout and #outofcloset trended for months.
International developments
There have been many positive developments in favour of the LGBTQ community on the international front. In May 2015, Ireland legalised same-sex marriage, becoming the first country to allow same sex marriage a national level by popular vote. Soon after in June 2015, the United States Supreme Court handed down a historic judgement legalising gay marriage. France, Canada, Scotland and Brazil are among other major nations who already have legalised same-sex marriages.
Canada's new government headed by Justin Trudeau, is strongly supportive of the LGBTQ community.
India currently stands with a host of countries such as Nigeria, Ghana, Iran, Saudi Arabia, Afghanistan, Mauritania, Qatar and Pakistan which criminalizes homosexuality
Growing political consensus
Finance Minister Arun Jaitley, in November 2015, had said that the apex court should not have reversed the Delhi High Court order de-criminalizing consensual same-sex acts. "When you have millions of people involved in this (homosexuality) you can't nudge them off," Jaitley said. "The Supreme Court's 2014 verdict banning gay sex is not in accordance with the evolving legal jurisprudence and the court needs to reconsider it."
Even Prime Minister Narendra Modi has come out in support of transgenders, regretting the deplorable conditions of the community in the country and urging the government to change its outlook towards them.