In a major setback to gay rights activists, the SC recently dismissed a petition seeking review of Suresh Kumar Koushal judgment and held that homosexuality or unnatural sex between two consenting adults under Section 377 of the Indian Penal Code(IPC) is illegal and will continue to be an offence. This order quashed the hopes of law reform.
Moreover as India takes a step back, UK prepares to legalize the same. The Indian SC re-criminalized gay relationships based on a colonial law that the UK has given in the heritage. Contrary, UK government has make a announcement promising a deadline for same sex marriages.
Lets get a bit familiar with the Section 377 and its history. Then we will talk about its consequences.
What does Section 377 say?
Section 377 says that "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal commits an unnatural offence and can be punished with up to life term." This is an archaic colonial law established in 1860 that banned sexual intercourse on the basis of its nature as "against the nature". Moreover Section 377 is not unconstitutional.
In 2009, Delhi high court had ruled that Section 377 was against constitutional values and human dignity, which clearly violates the human right of an individual. Here argument made by SC against the HC ruling is that, the Delhi HC has relied upon the judgments of other foreign countries which cannot be applied blindfolded for deciding the constitutionality of Indian law.
In the landmark Naz Foundation case, the Delhi High court stuck down the provision of criminalized consensual adults from having homosexual intercourse. The effect of the decision was that though homosexual intercourse was no longer illegal, Section 377 would remain in the statute books and could be used to prosecute other unnatural sex acts. Then the PIL by Suresh Kumar Koushal, whose interest was to protect cultural values of India society was filed. And here the SC overruled the judgment of Delhi High Court stating the reason that "LGBT individuals form a diminutive fraction of population and this Section 377 is not used frequently, the decision does not hold water.
Gay rights activists’ plea that Section 377 criminalizes a group of people and deprives them of equal citizenship was also rejected by a Court that held on to a textual reading that the law only criminalizes certain acts but not people or identity.
Though prosecution of consenting homosexuals was infrequent, Section 377 was used by the police to harass and intimidate sexual minorities.
The 2.5 million LGBT community is categorized as a high-risk group by the Department of AIDS control, as prevalence of HIV is 7 times higher in them than the others. In addition, the existence of this provision also prevented sexual minorities from accessing sexual healthcare without risking harassment or arrest.
The community would also face threats and intimidation or even blackmailing.
This decision of SC is termed as 'retrograde' as it has brought back medieval prejudice and has also curtailed liberal values and human rights. In majority of the cases, wherever the executive had failed and did not held constitutionally enumerated fundamental rights to life and equality, the court had stepped in. This time it should not shy away from correcting a centuries-old law. With this decision, it seems like judicial route has been closed to bring the law in line. Now there are few ways forward.
One of them is the application of curative petition, which allows the Court to take cases even after dismissal of review petition provided that it involves gross miscarriage of justice and violation of natural justice. But as the track record of previous cases suggest, this route does not appear to be optimistic. Since the review petition was dismissed without even a oral hearing.
The another way is making use of Parliament's prerogative to amend Section 377 in tune with the social circumstances. Though the Union government too was in favor of High Court's view, it had left it to the SC to decide on the penal provision. With the upcoming elections, this legislative amendment is neither priority for Congress part nor for BJP(Indian cultural reasons).
The last but not the least route is to make benefit of the federal structure. As the Indian Penal Code comes under Concurrent List of Constitution, State Legislatures may amend a central law subject to approval of President. As this issue was well handled by the State Court as compared to Apex court, the legislative interventions at State level seems to be the most feasible way out.
Above all, it is a test of humane values, fairness and dignity in a society. It is important that institutions of the state acknowledge the importance of these values.