It’s been a long and complicated campaign, and homosexuality is still illegal in India, but there are legal lessons to be learnt, Jyoti Puri writes.
In the last 15 years, the ebbs and flows of the legal campaign to decriminalise homosexuality in India have pivoted around constitutionality—the degree to which the anti–sodomy law is inconsistent with the fundamental rights guaranteed by the constitution.
When the Naz Foundation (India) Trust first petitioned the Delhi High Court in 2001 to modify the law – Section 377 of the Indian Penal Code – the argument was twofold. Making the case that criminalising same-sex sexual activity undermined efforts to prevent the spread of HIV/AIDS, the writ also argued that the law violated the constitutionally guaranteed rights of sexual minorities. The writ emphasised rights to equality, fundamental liberties, and life and privacy; more notably, it took the position that sexual orientation fell within the purview of the right to be protected from discrimination on the basis of sex.
At first, the Delhi High Court took a dim view of these arguments, dismissing the Naz Foundation writ in 2004 on a technicality, that the organisation did not have locus standi since it was not directly affected by the anti–sodomy law. The Naz Foundation, re–emphasising the question of constitutional validity, sought the Supreme Court’s intervention. Siding with the appeal, the apex court justices rebuked the lower court for failing to grapple with Section 377’s constitutionality, and ordered it to reconsider the merits of the petition.
In an about turn, the Delhi High Court in 2009 delivered an altogether different decision by decriminalising homosexuality. In soaring language, the ruling struck a blow against the anti–sodomy law some one 150 years after it had been introduced by the British colonial state. The ruling promised the first step toward full legal inclusion of the millions potentially affected by the law.
Underscoring the anti–sodomy law as unconstitutional, the Delhi High Court upheld the fundamental rights of sexual and gender minorities. Inspired by an amicable intervention filed by the coalition, Voices Against Section 377, the judgement was based on the concept of constitutional morality. Endorsing this counter-majoritarian view, the Delhi High Court justices ruled that the fundamental rights of sexual and gender minorities ought to be protected, regardless of dominant public morality.
Yet in another twist, the Supreme Court in 2013 took issue with the unconstitutionality of Section 377, and endorsed the criminalisation of homosexuality on appeal. Reversing the Delhi High Court ruling, the apex court justices took the view that laws ought to be declared unconstitutional only in rare cases. They reasoned that Naz Foundation had not presented enough evidence supporting its constitutional indictment of the anti–sodomy law, and that sexual minorities do not warrant constitutional protections since they represent only a “miniscule fraction” of the population. The High Court also ruled that that any modification to Section 377 ought to be taken up by the legislature.
After appeals against this unexpected outcome were denied, apex court justices on February 2, 2016 announced that they would consider a curative petition, the final stop in the legal process. Curative petitions may be filed in the Supreme Court to correct errors or the miscarriage of justice even after an appeal has failed. Rather than strictly adhering to the conditions under which curative petitions are considered, the justices emphasised the constitutional importance of the matter at hand. In a most unusual move, they also agreed to hold open court hearings.
What emerges in these twists and turns of the legal campaign against Section 377 is the wide scope of judicial interpretations. Revealing the subjective ways in which law actually functions, these differences bring into relief that justices who argue in favour of decriminalisation are not inherently less biased than those who oppose it.
What is equally true is that law does not deliver justice because it is objective; rather it delivers justice when principles of inclusion and parity override personal and cultural biases. The five apex court justices who will hear the arguments related to the curative petition have one last chance to let these principles triumph.