In a show of mercy, the apex court on Tuesday asked a five-judge Constitution Bench to hear a slew of curative petitions seeking the re-examination of its verdict criminalising sexual intercourse between consenting adults belonging to the same sex, under Section 377 of the Indian Penal Code. To the uninitiated, a curative petition is the last resort for redressal of grievances against a particular verdict. In December 2013, the Supreme Court overturned a 2009 Delhi High Court ruling that decriminalised homosexual acts between consenting adults. In the following month, the apex court dismissed a slew of review petitions against its ruling. Even the Centre had filed a review petition against the apex court verdict, in their bid to “avoid grave miscarriage of justice to thousands” and said the judgment “suffers from errors”. Suffice to say, Section 377 should have no place in a democracy like ours. It is a colonial-era law that criminalises all penile-non-vaginal sexual acts in the garb of prohibiting “unnatural offences”. Although it applies to both heterosexual and homosexual persons, only homosexual men and transgender persons are targeted. The law is rooted in the Judeo-Christian religious morality that abhorred non-procreative sex. Lacking a precise definition, Section 377 became subject to varied judicial interpretation over the years. As a result, it has been used as a tool by the police to harass, extort and blackmail homosexuals and transgenders, and prevent them from seeking legal protection from violence; for fear that they would themselves be penalised under the law. The stigma and prejudice continue to perpetuate a culture of silence around homosexuality, which results in denial and rejection at home along with discrimination in workplaces and public spaces. The Delhi High Court decision in 2009 had decriminalised adult consensual sexual acts in private had opened up an era of freedom and dignity for sexual minorities, while the judgment of the December 2013 apex court verdict brought back the period of fear and distrust amongst them. The sense of fear and distrust remains because, after the Delhi High Court verdict, many homosexuals had come out in the open.
The decision of the apex court in the Suresh Kumar Kaushal vs Naz Foundation case, which had overturned the Delhi High Court order, was an unconscionable blow to a community’s right to equality and freedom from discrimination, harassment and violence, leaving many citizens of the LGBT community at the mercy of a retrograde law once again. Moreover, the December 2013 verdict goes against its very own notion of fundamental rights, especially the idea that equality and dignity cannot be denied to any section of society. Suffice to say, the latest challenge against the December 2013 verdict comes at a time when India’s legal system has taken a considerably progressive route when it comes to questions surrounding sexual orientation and gender identity. In 2014, the apex court had recognised the “third gender”, which does not depend on medical examination or certification but on self-identification. It was a watershed moment in India’s march towards enshrining sexual and gender rights. The verdict, which had given a legal stamp on the rights of transgenders and hijras, among others, had gone some way to ensure equality and bring in a semblance of social parity for the traditionally discriminated sexual minorities. Evoking Articles 14 and 15 (equality and non-discrimination), 19 (fundamental freedoms) and 21 (right to life) of the Constitution to argue that transgenders are entitled to every right that is provided by the government, the verdict had essentially made gender and sexual identity free of external markers and taxonomic repertoire, thus acknowledging the vagueness of gender and sexual expressions. By the standards of these very provisions in the Constitution, the apex court must overturn. Section 377.