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The freedom to choose

WE are only weeks or months away before hopefully saying goodbye to Section 377 of the IPC.

The freedom to choose

ME TOO: All citizens must have equal rights to decide their orientation and preference.



Anand Grover

WE are only weeks or months away before hopefully saying goodbye to Section 377 of the IPC. Enacted by the British in 1861, it was replicated all across the Commonwealth. The damage it did to the large number of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) communities around the world was so devastating that the Queen of England had to apologise to the Commonwealth countries, apart from similar apologies tendered to those who suffered under a similar law in England, including Oscar Wilde.  

The English removed it from their legal regimen in the 1960s after the Wolfenden Committee recommended its deletion. Ironically, in India, where sexual acts had never been criminalised before the British, under any religious dispensation — Hindu, Buddhist, Sikh, Jain — we now see political and religious pundits claiming that Section 377 has been part of our culture. Because of such attitudes, the stigma and discrimination associated with Section 377 was so strong that when we took the decision to file the petition in 2001, nobody from the LGBTIQ community was willing to come forward as a petitioner. The petition, in fact, followed the arrest of activists in Lucknow, including those promoting the use of condom among gay men, in accordance with the government programme to prevent the transmission of HIV. Activist Arif Jafar had to spend 49 days in custody before he was released on bail by the Allahabad High Court. Ultimately, Naz Foundation, an NGO on HIV and working with gay men, filed the petition to challenge Section 377 in the Delhi High Court. 

The seminal decision by the Delhi High Court changed the climate. Not only was the language in Naz Foundation case liberating, the LGBTIQ community, for the first time, found that the judiciary was talking about their rights empathetically. Young and old, closeted for years, came out and starting living like other citizens. It was a new dawn for a significant segment of our population. The complete independence that they had been denied, when Jawaharlal Nehru made his speech about the tryst with destiny, was now theirs. Significantly, the Union of India, which had opposed the petition in the High Court, despite contradictory stands by the Health Ministry (supporting the petition) and the Home Ministry (opposing the petition), did not file an appeal against the judgment of the High Court. 

However, these hopes were dashed when the decision of Suresh Kumar Koushal case struck a crude and cruel blow to Naz Foundation. Unlike the language in Naz Foundation, Koushal case was decisively hostile, and the reasoning, flawless in Naz Foundation, was singularly lacking. An eclectic hotchpotch of Koushal was like rubbing salt on the wounds of the LGBTIQ community. 

We took all measures available to us in law, and filed review petitions. Significantly, again the Union of India filed a review petition. They were all summarily dismissed. Curative petitions were also filed and the Supreme Court directed them to be heard by the Constitution Bench. Navtej Johar and Akkai Padmashali filed direct writ petitions challenging 377. Ordinarily, these direct writ petitions would not have been entertained but in view of the pendency of the curative petitions, they were directed by the court to be placed with the curative petitions.

The impact of Suresh Kumar Koushal was felt on the ground. Harassment and blackmail, which had died down in the new era of Naz Foundation, was back with full force. Blackmail and extortion returned, by the police and ostensible friends, particularly found on dating applications. 

What came as significant breakthroughs were judgments of the Supreme Court itself in the NALSA and Puttuswamy case. In NALSA, the case relating to transgender persons, the court recognised that the right to liberty under Article 21 of the Constitution embraces the right of autonomy to all persons and determination of gender identity. More importantly, in Puttuswamy — privacy case — the court recognised privacy as a fundamental right in the Constitution, a question made moot by the Government of India. It also held that the fundamental “right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.” It went further to say that the judgment in Koushal had got it all wrong in how it treated privacy and also how a minority group is to be treated in respect of enforcement of fundamental rights. In Koushal, the court had refused to uphold the judgment of the Delhi High Court because it considered that the LGBTIQ community was a miniscule minority. Coupled with what it held on Article 21 on dignity etc., Puttuswamy spelt a death knell for Koushal. It was really a matter of formal process of performing the last rites on Koushal that remained. That is what, I would submit, the Constitution Bench is exercised with currently.

Surprisingly, the Union of India did not read the situation. It was not sure how the court would react. It is only after the questions, which came from the court, that it found it necessary to take a decision, and decided to “leave it to the wisdom of the court”. This is not only a cop-out, but also implies that it does not understand the situation on the ground. The LGBTIQ community wants the Union of India to take a strong stand in its support, not only because earlier the Union did so, but also because what will follow after the decision of the Supreme Court is a host of issues which will require decisive action by the Union of India. This will include issues of same-sex marriage and inheritance in those cases. Is the government going to be ambivalent then? Some say it is too distant in the future. 

I would not be too sure. Koushal case will see its formal burial along with Section 377 by the Supreme Court in the next few months, if not weeks, when it gives its decision. Then the LGBTIQ community, deprived of complete independence on August 15, 1947, will have its tryst with destiny on the day of judgment in Navtej Johar and others, which will restore the glory of the judgment in Naz Foundation. A new dawn will again dawn and new issues will come up. 


Senior advocate in the SC and director of Lawyers Collective

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