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Supreme Court Reserves Judgement on Section 377 Validity

The Supreme Court of India on Tuesday reserved judgement on the constitutionality of Section 377 of the Indian Penal Code. Section 377 effectively criminalises sexual intercourse between consenting adults of the same sex by making anyone who “voluntarily has carnal inter­course against the order of nature” liable to imprisonment and fines. A reserved judgement means that the court would not immediately deliver the verdict, but take more time to review the case and arrive at a decision.

The origins of Section 377 of the Indian Penal Code can be traced back to British rule. In 2013, the Supreme Court of India had overturned an earlier judgement by the Delhi High Court which read down Section 377, decriminalizing gay sex. On July 9th, the Supreme Court commenced a hearing to re-examine this verdict, giving hope to members of the LGBTQ community.

The validity of Section 377 is challenged by petitions that make a number of arguments. Article 21 of the Indian Constitution guarantees the Right to Life and Liberty, and the Right to Privacy was recently upheld as a fundamental right. Section 377 can be seen to violate these rights guaranteed by the constitution, as well as the Right to Equality and Prohibition of Discrimination. It was also argued that gay men undergo immense agony owing to blackmail and harassment that they become vulnerable to as a result of Section 377.

On the other side of the argument were contentions that legitimising homosexuality might lead to the spread of STDs like HIV/AIDS, put the institution of marriage in jeopardy, and pave the way for bestiality. The government also requested the court to limit its judgement to just the validity of Section 377 and not venture into the related legalities of marriage, inheritance, and other civil rights.

The five-judge bench, led by Chief Justice Dipak Misra, refused to widen the scope of the hearing to anything beyond the validity of the contested section of the IPC. While a judgement on the issue is still pending, a lot of the arguments in favour of the section were invalidated, giving good reason for the LGBTQ community to be hopeful. “The cause of sexually transmitted diseases is not sexual intercourse, but unprotected sexual intercourse. A village woman may get the disease from a husband who is a migrant worker,” the bench observed. “This way you would want to make sexual intercourse itself a crime,” it added.

“The whole object of fundamental rights is to give the court power to strike down laws which a majoritarian government, swung by votes, will not repeal. We don’t wait for majoritarian governments to repeal laws. If a law is unconstitutional, it is the duty of the court to strike it down“, said Justice Nariman, making it clear the issue would not be left to the Parliament to decide.

“I am expectant of a favourable judgement from the SC towards the LGBTQ community, but I don’t want to be overly optimistic. What seems to be favouring us right now is that the court has been very firm about taking a strong stance on any issue that violates fundamental rights, and the hearing in 2017 did award the Right to Privacy the status of a fundamental right. Also helpful here is the fact that the judges seem to have been cognizant of how much 377 threatens the LGBTQ community in general. The SC panel of judges has also taken a strong stance on the outdated and frankly ill-informed arguments that the UOI counsels have made, such as the ones on HIV/AIDS and cultural integrity of India.”

-Anirudh Gupta, former MAHE student, co-facilitator of Queer Campus Bangalore

“I was so happy to see that judges were dismissing the intervenors at their illogical arguments. Justice Indu Malhotra, Justice Chandrachud, and Chief Justice Dipak Misra expressed their views in favour of the community. Repealing Section 377 will just be the first step towards acceptance and inclusion of LGBTQIA+ community. We do have a long way to go after repealing Section 377. Civil rights to Marriage rights. But right now we are all hopeful that thethe Supr Court will take the right course of action in favour of LGBTQIA+ community.”

-Himanshu Singh, founding member of Umeed, an LGBTQ resource group in IIM Kozhikode

“The transgender community is far more at risk of being abused as a result of Section 377 because you can hide your sexual orientation to some extent but you cannot hide your gender identity, specifically if you’re a Hijra community member or a male-to-female transgender. As a result of that, it’s easy for the police to assume that your sex acts are immoral or you’re engaging in prostitution. I do think that the outcome of the Section 377 hearings will be positive, based on what the responses of the judges have been, but you simply don’t know how these things can go because the Supreme Court has disappointed members of the queer community before. The law can only do so much. You can’t change an entire population’s mentality with a change in legal framework. But this is definitely a start. It (Section 377) is utterly dehumanizing and there is no space for that in the Indian Constitution and in the fabric of Indian society.”

-Trineta Haldar Gummaraju, co-founder of the Queer and Ally Network, Manipal

Featured Image: The Indian Express