The Uphill Battle Against Section 377: Spotlight on India

By Ragavendran G.

An in-depth version of this article is available here.India377

The lightning speed with which the monumental societal shift in gay rights has come about in the United States is nothing short of stunning. Recent events in India, however, stand in stark contrast to the steady pace with which gay rights in the United States have been advanced by its Supreme Court. The law in question is Section 377 of the Indian Penal Code (IPC), a 150-year-old colonial era law which criminalizes “carnal intercourse against the order of nature.” On July 2, 2009, the Delhi High Court, in a landmark ruling, read down Section 377 to decriminalize consensual sexual relations between adults in private, holding that to criminalize them would deny the fundamental rights to dignity and privacy guaranteed by the Constitution for no legitimate purpose.

On December 11, 2013, however, India’s Supreme Court reversed the Delhi High Court, recriminalizing consensual homosexual activity, turning the clock back on gay rights. The Court subsequently rejected a batch of review petitions as well. The final recourse for challenging that judgment is what is known as a curative petition, the concept of which was created by the Supreme Court itself in order to prevent abuse of its process and to cure gross miscarriage of justice. Statistically speaking, curative petitions are very rarely entertained. In what is therefore considered an extraordinary step forward, the Court, after a chamber hearing on April 22, 2014, agreed to hear oral argument on whether curative review is warranted. The petition’s prospect remains bleak though, as two of the three judges who will consider the petition are the two that rejected the review petitions. However, a recent development might just persuade at least one of these two judges to reconsider:

On April 15, 2014, a different 2-judge panel of India’s Supreme Court handed down a sweeping judgment that granted third gender status to transgender citizens, noting that it was the right of every human being to choose their gender, granting rights to those who identify themselves as neither male nor female. The central and state governments were also directed to take steps for bringing the community into the mainstream by providing adequate healthcare, education and employment. Even though this judgment expressly excluded gays, lesbians and bisexuals from its scope, and asserted that it expresses no opinion on the constitutionality of Section 377, its rationale and conclusion is undoubtedly in fundamental conflict and cannot be reconciled with the Court’s December judgment concerning Section 377, a strong argument for why the Court should grant the curative petition, reopening the case for review by a fresh panel. Here’s hoping that it does.

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