“I am shocked. The battle is lost but the war will go on,” said senior advocate Anand Grover, who represented Naz Foundation, a gay rights advocacy group. The statement was said after the Supreme Court refused to review the petition filed by the filmmaker Shyam Benegal, feminist activist and writer Nivedita Menon, Voices Against Section 377 and other prominent activists.
The entire episode is in context of the December 11, 2013 judgement of the Supreme Court (SC) declaring Section 377 of the Indian Penal Code (IPC), 1860 as constitutionally valid and thus over-ruling the July 2, 2009 judgement of the Delhi High Court which decriminalised consensual sex among adults irrespective of gender. A public outrage was the immediate result of this verdict by the SC and a sort of injustice was on the offering for the Lesbian, Gay, Bisexual and Transgender (LGBT) community.
Section 377 of the IPC, 1860 says that 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 ten years, and shall also be liable to fine. It has been more than 150 years and the hunt for the rights of the minority group are still continuing. The world has moved from a colonial era to a globalised and liberalized atmosphere where the vice of apartheid, racist approach has taken a backstage and a progressive society is the aim and that too inclusively. Many international forums have taken birth with their specialized groups-of-focus like women, disabled and are successfully raising their voice to get their long due from the society which has failed them for generations. Navi Pillay, the United Nation Human Rights chief, in this context said that the judgement violates the rights to privacy and to non-discrimination mentioned in the International Covenant on Civil and Political Rights, which India has ratified. Same-sex marriage is recognized in the Britain, Uruguay, New Zealand, Netherlands, Spain, Canada, Sweden, Norway, France, Belgium, Iceland, Argentina etc. It is no doubt a proof of the maturity of the nation and its tolerable nature to allow the minority to make “love” according to their wish. India, at this juncture, has shown little political initiative to take decisive action. Pope Francis of Vatican City said in this regard: “If a person is gay and seeks God and goodwill, who am I to judge him;” and this when Italy has a law against LGBTs. This is the greatness and humility of the faith-keeper of the church.
Let us now look at the current scenario, various views by different sections and the future course of action possible at the political and legal level to give the minorities their rights. These days, after the judgement, several critical opinions are floating in the public domain with everyone with his own version of section 377. One of the views goes as what the SC thinks as “unnatural” with regard to the section 377 might not be true for the liberalised and modern society which has moved ahead of 1860. Others believe it violates Articles 14, 15 and 21 of the constitution which guarantees equality, liberty and a right to live a dignified life. In one of the recent case, SC held that delay in granting mercy petition can be a sufficient cause for clemency of death sentence. This judgement was appreciated by all including the Human Rights activists as it sought to provide a dignified life even to the persons who have committed serious crimes, which is a basic fundamental right enshrined in the constitution. In the light of the above ruling, SC must have protected the fundamental rights of those minorities too whose voice is not as strong as the powerful ones. This could have certainly enhanced the credibility of the institution as the protector of fundamental rights of its citizens. Thus, one of the editorials in The Hindu correctly termed it as “A lost opportunity”.
Having said that, there is still reason to be optimistic as said in the very line “The war is not lost”. This is because the Supreme Court judgment had given clear power to the legislature when it said: “Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377, IPC, from the Statute Book”. However, to critically look at the motive of the political parties when election is knocking at the door, it would be a bold step, if taken. This is because no party would like to play with their voters in the rural areas and even the older generation with whom the judgement would have probably found resonance to. Also, the steps taken by the central government which sought for the review of the judgement was believed to be misleading the public. This is because “review petition” was not the best solution at this instance according to the legal experts. It was in order to show solidarity and gain the support of such people who are against section 377. This is because the parliament has full authority to repeal the act and could have done it smoothly without much delay.
At the end, it would be grossly unfair to say that these communities are very miniscule in number and hence section 377 was constitutionally valid. This is what SC wrote in its judgement and the institution has found no supporter for its view. This is because unlike elections where the candidate needs majority support, law does need to be only for the majority. As far as social acceptability is concerned, we as a nation have moved far ahead in our path of development and have left such regressive ideas behind. To maintain a fair society, law must not encroach the “bedroom” of its citizens as was correctly pointed out by Chapal Mehra in one of his articles in The Hindu: “A love must be equal in the eyes of law”.
