Will it? Won’t it?
The apex court on Tuesday is set to hear a curative petition filed by gay rights activists against its own December 2013 judgment, which upheld the validity of Section 377 of the Indian Penal Code. Earlier, the Delhi High Court in 2009 had repealed the draconian Section 377. However, the apex court declared that the Delhi court could not have a say in the matter and it was up to Parliament to amend or strike down a law. As is well-known, Section 377 is a colonial-era law that criminalises all penile-non-vaginal sexual acts in the garb of prohibiting “unnatural offences”. Be it noted that though 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 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 homosexual men and prevented them from seeking legal protection from violence; for fear that they would themselves be penalised for sodomy. The stigma and prejudice perpetuated a culture of silence around homosexuality and resulted 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 apex court in upholding the colonial-era law has brought back the period of fear and distrust amongst them. Fortunately, the past decade has seen progressive views on the subject come to the forefront of popular culture. Although there has been numerous ups and down, the pitched battle for basic equality and liberty for homosexuals has seen the slow dissipation of homophobia in the Indian mainstream. Public figures, including actors, activists and politicians have come out in favour of striking down the law. In the recent session of Parliament, Lok Sabha Member of Parliament Shashi Tharoor introduced a private member’s bill, which seeks to amend the draconian Section 377. From harassment to freedom to fear, the journey of Section 377 could possibly take a new turn. However, it would be foolish on our part to expect the current Parliament, embroiled in one political confrontation to another, to entertain this long-needed amendment. But late last month Union Finance Minister Arun Jaitley had said that the apex court judgment on Section 377 was incorrect and that “at some stage, they may have to reconsider”. The hope among progressive members of this nation is that the apex court reconsiders its decision.