Hope For India & The LGBT Community: SC Agrees To Re-examine Its Section 377 Verdict

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Old 03-Feb-2016
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Hope For India & The LGBT Community: SC Agrees To Re-examine Its Section 377 Verdict

Today the Supreme Court heard a curative petition filed by Gay right activists and NGO Naz Foundation about the legitimacy of section 377. The apex court headed by Chief Justice TS Thakur and two other senior justices- Anil R Dave and Jagdish Singh Kehar referred the matter to a five-judge Constitution bench and assured that curative petitions for de-criminalising homosexuality would be listed at an early date. Kapil Sibal, arguing against Section 377, told the court that banning gay sex bound present and future generations to indignity and stigma. Christian church body and Muslim Personal Law Board have opposed the petitions against Section 377.

The law criminalises gay sex and states “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine”. It dates back to 1860 under lord Earl Canning’s reign and has since been the part of Indian Penal Code when it was originally formed. Clearly the section represents colonial mindset and does not reflect on the modern attitude towards LGBT community . MP Shashi Tharoor had introduced a private member’s bill in Lok Sabha in December seeking to amend section 377, but the bill was defeated in its very first reading.

The Sequence of Events

The struggle against section 377 began way back in 1991 and It was in 2001 that Naz Foundation first filed a PIL in Delhi High Court against the law. The court rejected the PIL on technical grounds but later had to readmit it due to the Supreme Courts intervention. The case came up for hearing again in 2008, and after 7 long years of deliberations the Delhi High Court in 2009 overturned the 150 year old section. The Two judge bench went ahead to state that ” If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of ‘inclusiveness”. This judgement was clearly a step in the right direction. However the case went to the supreme court and to everyone’s surprise in its judgement of the case in 2013 the court decided that the law does not suffer from the vice of unconstitutionality and the statement made by the Division Bench of the High court is legally flawed. According to the Supreme court the law could now only change if it was amended by the parliament itself. The hopes of parliament coming to the rescue of the LGBT community was laid to rest with the defeat of Shashi Tharoor’s private bill. In fact other MP’s in the parliament came strongly at him ridiculing the MP stating that he wanted the law decriminalised for himself.

The Constitutional Viewpoint

It was in the famous Kesavananda Bharti vs State of Kerala case of 1973 that Supreme court gave itself the power to maintain the ‘basic structure of the constitution’. The concept of basic structure is not given anywhere in the constitution and is completely a judicial innovation which the supreme court has used whenever it felt that the conscience of the constitution was under threat. The supreme court when it hears the petition will be fully within its constitutional mandate if it decides to decriminalize homosexual activities or not. With the introduction of PIL’s the court gave itself and the common man the power of true democratic activism. It has over the years struck down many evil, obsolete and archaic laws. Very recently the supreme court banned Jallikattu even though it had support of political class, the NJAC bill was struck down even though it had been introduced through proper parliament procedures because according to the SC it violated the basic structure of the constitution by taking away judiciary’s independence. Most recently in 2014, the supreme court recognized transgender as a third gender. But the most important decision of the supreme court lately was the striking down of section 66A of the IT act on the grounds that it had the potential for harassment and misuse. There is much similarity in both these sections when it comes to their potential abuse.

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