Engage with our work

Thursday, September 6, 2018

Bring out the rainbows: The Section 377 Verdict

Written by Nanditha Ravindar, Sourya Banerjee, and Kirthi Jayakumar, with inputs from the team

No automatic alt text available.The Indian Penal Code came into force in 1860. It was a piece of legislation crafted by the British legislative arm for India, which was their colony back then. Like many other provisions, Section 377 was a by-product of a colonial, more specifically, Victorian perspective that was largely coloured by a prejudicial perception of the natives.
While many cultural practices thrived before the advent of invaders in India, they turned doubly rigid when waves of invasions followed by the Mughals and the British Empire. Endogamous marriages were soon preferred, caste segregations became watertight and ritualistic practices increased. Culture became merged with religion, repackaged and offered as actual religion. What the scriptures really said lay forgotten, as the fear of religious dilution led to warped perspectives taking over lifestyles.
Historically, a spectrum of sexual orientations were not new to India. In fact, temples had scenes depicting the spectrum. Sexual orientation of any and every kind is perfectly natural. From animals to human beings, the exhibition of sexual orientations that fall outside the ambit of heterosexuality as a trait is not an anomaly. Secondly, having a sexual orientation is as natural as breathing, and is technically not an aberration on anything that is deemed normal. 

The law as it existed in India
As of 5th September 2018, Section 377 of the Indian Penal Code dealt with what it termed as unnatural offences and stated: “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.” 

By this definition, the Section thus criminalized homosexuality or sexual acts between people of the same sex, terming them as “against the order of nature”. Furthermore, the Section effectively criminalized oral and anal sex as well. 

Section 377 thus served as an excuse for people to target, blackmail and harass people from the LGBTIQA+ community, as their sexual acts and their orientation were under the scanner. Although the Delhi High Court decriminalized homosexual acts in the year 2009, the Supreme Court overturned that ruling, thereby criminalizing it again. 

The Section thus created huge problems for individuals from the LGBTIQA+ community who were unable to express their true selves and felt that they had lost their right to sexual orientation and expression. A slew of protests followed the criminalization of the act, which saw participation from allies of the community as well.

The historic verdict
The judgment in the case of  Navtej Singh Johar & Ors vs Union of India and Ors batch matters, delivered by the Constitutional Bench of the Supreme Court, have four different concurring opinions. The five Judges, namely Chief Justice, Mishra, Justice Khanvilkar, Justice Chandrachud, Justice Nariman, and Justice Malhotra had all concurred on the core issues, but Justice Nariman, Justice Malhotra, Justice Chandrachud, and CJ Mishra all authored their separate opinions and reasonings for the same, while Justice Khanvilkar completely agreed with the opinion by CJ Mishra, and did not author a separate concurring opinion.
CJ Mishra and Justice Khanvilkar: Both judges strongly held that sexual orientation of an individual is natural right and discrimination on the basis of sexual orientation is a violation of Freedom of Expression as provided under the Constitution of India. They held that the provision of IPC had long since resulted in collateral effect in that specifically consensual sex between LGBT individuals was criminalized and it was therefore violative of their rights under Article 14 and Article 21. The Opinion also highlighted that if consensual activity between a heterosexual couple, under Section 375 of IPC was legal, how could the same activity be illegal for either heterosexual couples under Section 377 without being in conflict or for homosexual couples under Section 377 IPC, without being discriminatory. The Opinion heavily relied on the K.S. Puttaswamy and another v. Union of India and others ( (2017) 10 SCC 1) judgment. 

Justice Nariman: Justice Nariman highlighted that Section 377 was a pre-constitutional law which was brought into 372 of the Constitution, and its presumption of Constitutionality was open to challenge. Apart from mostly agreeing with the previous opinion, Justice Nariman laid special emphasis on Mental Healthcare Act, which expressly stated that LGBT is not a mental health issue, and highlighted the physical and emotional trauma which may be caused to the LGBT community by the discrimination. Justice Nariman also traced international jurisprudence by highlighting foreign judgements, including from the development of the law in USA and UK.

Justice Chandrachud: Justice Chandrachud, linked Section 377 to traditional gender roles, by explaining that Section 377 criminalizes behavior that does not conform to the heterosexual expectations of society. In doing so it perpetuates a symbiotic relationship between anti-homosexual legislation and traditional gender roles.  The notion that the nature of relationships is fixed and within the ‘order of nature’ is perpetuated by gender roles, thus excluding homosexuality from the narrative. The Opinion also highlighted the  Masterpiece Cakeshop v. Colorado Civil Rights Commission ( 584 U.S. ____ (2018).) case, analyzing both the majority and minority opinions in that case, along with the case of Lee v. Ashers Bakery Co. Ltd ( [2015] NICty 2).  Justice Chandrachud emphasized the fact that de-criminalization was but the first step and the Constitution envisage much more. He ended his judgment by stating that constitutional morality and not Societal morality should be the driving force for deciding the validity of Section 377, and the minority rights need not await the parliament or elections to get their due.

Justice Malhotra: Justice Indu Malhotra Opinion was crisp and to the point. She drew up the history of anti-LGBT laws, and of Section 377. She put special emphasis on the physical and mental health care of the LGBT community. She stated that since Section 377 criminalizes “carnal intercourse against the order of nature” it compels LGBT persons to lead closeted lives. As a consequence, LGBT persons are seriously disadvantaged and prejudiced when it comes to access to health-care facilities. This results in serious health issues, including depression and suicidal tendencies amongst members of this community.   
Ratio: Section 377 of IPC insofar as it criminalizes consensual sexual acts between adults is unconstitutional and struck down. Bestiality and carnal intercourse would minor would, however, remain criminal. The judgment in Suresh Kumar Koushal stands overruled. 

Vox Pop:
Here's what some of our team has to say:
Manasa Ram Raj: Sitting glued to my computer for an hour waiting in patience, wondering what the Supreme Court was going to say was truly nerve-wrecking. To see #IndiaPride trending fills my heart with joy!! Today is the day to celebrate love. Today is the day India stands together equal and united! Today is the reason I have hope again!

Akhila Jayaram: This verdict is representative of India moving forward with the times. I heartily welcome the inclusion of the LGBTQIA+ community in the laws of the country and hope we will not stop at this. The next steps would be to increase awareness about different aspects of gender and sexuality, something which has long been ignored in schools. I also hope that along with the changing laws, the Indian people become more welcoming to us.

Kirthi Jayakumar: I couldn't sleep last night: this bench was the kind that wouldn't stand for a human rights violation - especially Justice Nariman and Justice Chandrachud. There was a more concrete reason for hope. From 10:30 AM, I found myself refreshing Twitter feeds and news channel websites feverishly, even as the television blared the news. Postponements by fifteen minutes at a time felt like a mounting crescendo. At the 11:48, the first concrete mention of the decriminalization of consensual same sex marriages and relationships registered in my brain. My hands were shaking, and I dissolved in a pile of tears. This is but only one step in a long journey. Of course the judiciary has paved the way for a bright future. But violence, hate, crimes, and discrimination still continue - and in all likelihood, are bound to continue - regardless of the law. And yet, I remain hopeful, for if this can come from the highest legal institution in the country, it's definitely a sign for things to come.

Anon: I woke up this morning feeling slightly anxious and nervous, knowing that after today, things would be different. I had no doubt in my mind that there would be a positive verdict. I was more anxious about what would happen next. Would the most visible (and privileged) queer activists take this as a sign that all has been won and that everyone can go home now? Would the looming trans rights bill be forgotten? Would the casteism prevalent in the queer community continue to go unaddressed?

Within minutes of the judgement, I saw one such activist tweet that this was all thanks to certain warriors: a casteist, an abuser, a transphobe, and a bunch of highly visible media figures (one of whom wasn’t even Indian). A lot of the things that were said were quite bothersome, and I felt like such a wet blanket, feeling anxious and upset on a day I should be celebrating. I posted that I was feeling that way, and immediately received messages from several people from more marginal sections of the queer community that they felt the same way.

Slightly relieved that I wasn’t alone, and slightly angry that this erasure had begun from the first day, I realized that the fight had only just begun, and that there will be reckonings within and without the queer community, moving forward. With that, I am excited to see how we go forward, and hope for the day to come when everybody is free, and safe from the violence that has nothing to do with laws.

Vasanthi Swetha: 
Your heart
is a sacred place,
it tells you
exactly what it wants,
there is no politics there,
there is no voting there,
there is no doubt there,
it makes you listen to things
you must;
today is a victory
not because this law is a permission,
but because this law is an apology
for all the times we covered your ears
when your heart talked.