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Tomorrow is a historic day before the Supreme Court of India. The Supreme Court will hear in open court, on February 2 2016, a curative petition of gay activists challenging the court's own verdict criminalising homosexuality in the country. This last ditch challenge to the Supreme Court’s own judgement – declaring Article 377 that criminalises homosexuality as constitutional – will be heard through a curative petition. A bench headed by Chief Justice T S Thakur agreed to hear the curative petition filed by gay rights activists and NGO Naz Foundation against the Supreme court's December 11, 2013 judgement upholding validity of section 377 (unnatural sexual offences) of IPC and the January 2014 order, by which it had dismissed a bunch of review petitions against the order. In its controversial judgement, the Supreme Court had validated Section 377 while observing that the Indian Parliament has the power to change the law.
This is one of the issues before the Supreme Court that has evinced strong reactions. The attitude of Indian higher courts have also generated international comment and criticism given the fact that this section of Indian criminal law is widely viewed to be completely outdated. Three of the Court’s most senior judges, Chief Justice Justice T.S. Thakur, Justice Anil R. Dave, and Justice Jagdish Singh Kehar will hear the curative petitions.
Three alternate courses of action could result: the Judges could decide to hear the matter, and begin the proceedings immediately, they could decide to hear the matter and post it for another date, or they could dismiss the case. The stand of the Modi government will be watched closely given the varied statements made by ministers in the government and representatives in Parliament. If the case is dismissed, then opponents of the law will have to wait until a fresh case challenge comes before the courts.
The hearing of the curative petition comes barely a a month after Members of Parliament in the Lok Sabha voted down a motion to discuss a private members Bill drafted by Congress MP Shashi Tharoor, that asked for section 377 to be amended to remove from its ambit consensual sex between adults.
Though in the public arena, members of the Indian ruling party have periodically made some statements, hesitatingly affirming gay rights, these views were belied by the conduct of representatives of the same party, in Parliament.The MPs’ refusal to even discuss the bill, let alone consider passing it, demonstrated that it is the judiciary that is best placed to consider the constitutionality of this law. Left to elected members of the legislature, section 377 is unlikely to be changed soon.
The Delhi High Court delivered on July 2, 2009 had brought a whiff of freedom for India’s queer community. Thousands of persons from the LGBT community had hailed the long overdue verdict. In the four years between 2009 and the set back to their rights from the December 2013 verdict of the Supreme Court, thousands from the LGBT community came out of the closet; became open about their sexual identity. The Delhi High Court judgement, decriminalised gay sex. Suddenly, four years later, they faced the threat of being prosecuted.
In the arguments to protect their basic rights, the LGBT community had argued that criminalising gay sex amounts to violation of fundamental rights of the LGBT community. This argument will be made again tomorrow. The Supreme court had earlier dismissed a batch of review petitions filed by the Centre and gay rights activists against its own earlier verdict declaring gay sex an offence so serious as to be punishable with terms that could go upto life imprisonment.
While setting aside the July 2, 2009 verdict of Delhi High Court, the apex court had held that Section 377 of IPC does not suffer from the vice of unconstitutionality and that the declaration made by the high court was legally unsustainable. Amid huge outrage against the judgement, the Centre had filed a review petition in the apex court seeking a relook into the issue, to "avoid grave miscarriage of justice to thousands of LGBT" persons who have been aggrieved by the apex court judgement, contending it is "unsustainable" as it "suffers from errors".
A curative petition is the last judicial resort available for redressal of grievances in the Supreme Court, which is normally decided by judges in-chamber. In rare cases, such petitions are given an open court hearing. This will be the case with this curative petition. The petitioners, including the NGO, which has been spearheading the legal battle on behalf of Lesbian, Gay, Bisexual, and Transgender (LGBT) community, has contended that there was an error in the judgement delivered on December 2013 as it was based on an old law.
"The judgement was reserved on March 27, 2012 but the verdict was delivered after around 21 months and during this period lots of changes took place including amendment in laws which were not considered by the bench which delivered the judgement," the pleas had said. The apex court had then said it did not see any reason to interfere with the December 11, 2013 verdict and had also rejected the plea for oral hearing on the review petitions which are normally decided by judges in chamber without giving an opportunity to parties to present their views. It revived the penal provision making gay sex an offence punishable with life imprisonment, in a setback to people fighting a battle for recognition of their sexual preferences.
Interestingly, tomorrow’s Court hearing coincides with the India release of Hansal Mehta’s film based in Aligarh, on the life and death of Aligarh Muslim University (AMU)’s Professor Ramchandra Siras, who committed suicide after he was expelled from the campus of the university, because of an unethical sting conducted in his residence on campus where he was filmed having sex with a man. Although Siras challenged the university’s decision to expel him from the campus successfully in the Allahabad High Court, he committed suicide soon after. Siras, who was the head of the department of modern Indian languages at AMU, took on the role of an activist in the short span that this episode played out, and publicly talked about the difficulty of being gay in a conservative environment.
Professor Siras’ tale reflects the lives of millions of LGBT persons in India today. Faced with the prospect of societal censure, and laws that criminalise consensual sex, LGBT persons continue to bravely speak up about the discrimination they face, and demand equal rights. The story of Professor Siras reflects the core argument that has been made in court against section 377 – even if it is difficult to gauge the exact number of arrests made under this law, the fact is that the law creates an atmosphere legitimising discrimination and abuse of LGBT people. It sends out a message to people that they are unequal, and there is something wrong with them. It allows for quacks posing as psychiatrists to prescribe electric shock therapy to homosexuals in order to ‘cure’ them.
The petitions before the Supreme Court are asking for the judges to cure the defects in the judgment as laid down by the same court in 2013. These defects, the petitions argue would lead to such a gross miscarriage of justice, that the court must exercise its powers and correct its previous decisions.
The curative power of the court is a recent judicial innovation, and this case in some ways is a test of how this power is exercised. Will the Supreme Court use this power to rectify its mistake in 2013 completely ignoring reams of evidence placed before it, evidence that showed the ways in which the law impacts the LGBT community? Or will it uphold its earlier view that ‘that there was insufficient evidence of discrimination against what it termed “a miniscule minority”’?
The struggle for LGBT rights in India is a relatively recent political battle that has galvanized support from a wide spectrum of people across ideological boundaries, and cutting across barriers of age, language and class.
The colourful pride marches; flamboyant imagery, the determination and enthusiasm with which this battle has been waged have won the minds and hearts of many in this country. Whichever way the court goes, the gains made by the LGBT movement cannot be reversed that easily. Thousands of people continue to come out every day, and law or no law, there is no way that LGBT persons can be forced back into the closet.
The stage is set. The long emotive legal battle has lasted for over a decade. It will be ironic if the political struggle for LGBT rights is not matched by appropriate legal changes. The Supreme Court’s decision in 2013 stands out like a sore thumb among its own judgments, including the Court’s 2014 NALSA verdict on the rights of transgender persons. It remains to be seen if this bench of the Supreme Court will display courage to right a wrong that has and is being committed, through an inhuman application of the law, against sections of our own people.