IT was a moment they had been waiting for. On February 2, a three-judge Supreme Court bench, comprising Chief Justice of India Justice T.S. Thakur and Justices Anil R. Dave and J.S. Khehar, heard in open court the curative petitions against the Supreme Court’s 2013 judgment setting aside the Delhi High Court’s 2009 judgment decriminalising consensual sex between two adults in private and decided to refer them to a five-judge Constitution bench in view of the significant constitutional issues raised by them.
Ever since the introduction in 2002 of the curative remedy to litigants aggrieved by its decisions, the Supreme Court has heard curative petitions in open court only in a few cases and granted relief to petitioners by recalling the court’s earlier judgments only in three cases. Most curative petitions are heard in circulation by the three senior-most judges of the court and the judges who delivered the main judgment (if not already retired), in their chambers, spending not more than five minutes to study each petition. Almost all the petitions have been dismissed as not deserving the curative remedy.
Therefore, the court’s February 2 decision to not only hear the petitions but also refer them to a larger bench underlines the seriousness with which the bench considered the issue. It also showed that the bench found prima facie merit in the prayers of the petitioners, even though the respondents, who made brief submissions, opposed the hearing of the petitions.
The bench listened keenly to the impassioned plea of the senior advocate, Kapil Sibal, who represented the mother of a lesbian, gay, bisexual and transgender (LGBT) person, that right to express sexuality is the most precious right and curtailing that right in the private sphere is unconstitutional. He said the decision in the case would bind the present and future generations, and the outcome would determine whether it enhanced the dignity of every citizen or further stigmatised them.
The Union of India, which did not appeal against the High Court judgment, was conspicuous by its absence among the parties that made submissions before the bench on February 2. But once the Constitution bench begins its hearing, the Centre will have to make up its mind on whether it should adopt the stand taken by the previous United Progressive Alliance (UPA) government not to oppose the High Court judgment. Indications are that the Narendra Modi government might join the petitioners in seeking the recall of the 2013 judgment.
Finance Minister Arun Jaitley is on record as saying that the Supreme Court should not have set aside the High Court judgment. The Attorney General, Mukul Rohatgi, has been reported as saying that the 2013 verdict was erroneous and that he would not defend the law even if the government chose to do so.
There is uncertainty over the Central government’s stand because it has been reluctant to amend or repeal Section 377 of the Indian Penal Code (IPC), although it has the required numerical support in Parliament to do so. However, in December last year the Private Member’s Bill to decriminalise consensual adult sex in private by substituting Section 377 with a new provision was opposed by 71 members and supported by 24. The Bill was moved by Congress member of the Lok Sabha Shashi Tharoor. The Bharatiya Janata Party (BJP) MPs who opposed the Bill cited the Supreme Court’s 2013 judgment for their stand, although that judgment left it to Parliament to decide whether to repeal or amend the provision. The BJP MPs jeered Tharoor on the floor of the House.
In 2009, the Delhi High Court, on a challenge from the Naz Foundation, a non-governmental organisation (NGO) active in the field of HIV/AIDS intervention and prevention, to the validity of Section 377, read it down, so as to make it inapplicable to adult consensual sex in private.
The verdict was hailed as a turning point in India’s evolution as a modern, forward-looking nation wedded to the principles of substantive equality, non-discrimination and inclusive right to life and liberty. The Chief Justice, Justice Ajit Prakash Shah, and Justice S. Muralidhar ruled that Section 377, insofar as it criminalised consensual sexual acts of adults in private, was violative of Articles 21, 14 and 15 of the Constitution. The Supreme Court’s 2013 judgment turned the clock back and found Section 377 constitutional, on a suspect reasoning.
The Naz Foundation has raised significant issues in its curative petition. First, it has pointed out that the Supreme Court failed to notice the effect of the amendment in 2013 in Section 375 of the IPC on Section 377. Section 375 has been broadened to include penile, non-vaginal sexual acts, between man and woman, without consent, as an offence. By implication, such sexual acts between man and woman, which are consensual, are not criminalised.
Consequently, these consensual acts between man and woman have been taken out of the ambit of Section 377, as otherwise the amended Section 375 would have been rendered redundant. The petition points out that Section 377 effectively criminalises all forms of penetrative sex, that is, penile-anal sex and penile-oral sex, between man and man, thereby being ex facie discriminatory against homosexual men and transgender persons, violating Article 14. Besides, the petition contends that the court ignores the wealth of material shown by the foundation and affidavits submitted by the Union Ministry of Health and Family Welfare that Section 377 hampered HIV prevention efforts.
The petition also argues that the court failed to consider that Section 377 violates Article 15, as sexual orientation is a ground analogous to sex, and that discrimination on the basis of sexual orientation is not permissible under Article 15.
Another issue the curative petitioners will highlight is the complete incompatibility of the 2013 judgment with the court’s subsequent judgment in the transgender case, which was delivered by the bench of justices K.S. Radhakrishnan and A.K. Sikri on April 15, 2014. In this judgment, the bench upheld transgender persons’ right to decide their self-identified gender and directed the Centre and the State governments to take measures to help them regain their respect and place in society. The bench has recorded that Section 377 highlighted certain identities, including hijras, and was used as an instrument of harassment and physical abuse against hijras and transgender persons.
Activists and LGBT persons are pinning their hopes on the yet-to-be-constituted Constitution bench. Anjali Gopalan, founder and executive director of Naz Foundation (India) Trust, said it was a good sign but was cautious about guessing its outcome.
The 2013 judgment had a severe and debilitating effect on the lives of LGBT people on the ground. First, many of them went back into the closet. Magdalene Jeyarathnam, a counsellor with East-West Centre for Counselling who works with families in Tamil Nadu and elsewhere, said that the harassment LGBT persons suffered reached unprecedented levels. She said: “They were threatened and blackmailed. People were living in constant fear. Families that were open started encouraging their LGBT affirmative family member to leave the country or be more careful, as this was not the place for them, or to simply get married to please society’s normative paradigm and then do whatever they liked. They are scared, as even the police can come knocking one fine day and say you are indulging in criminal activity. It is a very frightening scenario right now.”
The situation is worse for transgender persons as they are more visible and the social stigma attached to them is enormous. Since 2013, instances of violence against them have been increasing. Akkai Padmashali, founder-member of Ondede, a human rights organisation, said, “Violence against sexual minorities has increased, especially from law enforcement agencies. Policemen have threatened transgenders by saying that even the Supreme Court says you are unnatural! People have been put into beggar’s colonies. They have been raped.”
Akkai, who is a born male to female (through sexual reassignment surgery) and has a partner who is female to male, asks whether sex is only for the purpose of reproduction. “Should relationships be only for procreation? It can also be for satisfaction, enjoyment, curiosity, exploration and art. The pre-constitutional colonial idea that any sex that is not for procreation is unnatural is outdated, and it is high time that India came out of this 16th century mentality,” Akkai said.
The judgment will have a far-reaching effect on the citizenship of transgender persons. She is mulling filing an individual petition in the Supreme Court to add to the strength of the curative petitions filed by the Naz Foundation, Voices Against 377, Minna Saran and 18 other parents of LGBT persons, Dr Shekhar Seshadri and 13 other mental health professionals, Ratna Kapur and other law professors, Nivedita Menon and 18 other teachers and the film-maker Shyam Benegal.
Arvind Narrain, a founder-member of the Alternative Law Forum in Bengaluru, was part of the litigation team in the High Court as well as the Supreme Court. He says the referral of the curative petition to a Constitution bench is unambiguously important as it opens the domain of hope. “Indian society has changed dramatically since 2009 and all political parties are for decriminalising [except maybe the BJP]. Muslim and Christian religious leaders are saying on television that this shouldn’t be criminalised. We have a big chance.”
The High Court, in its judgment, had said that popular morality or public disapproval of certain acts was not a valid justification for restriction of the fundamental rights under Article 21 as it was based on shifting and subjective notions of right and wrong. “If there is any type of ‘morality’ that can pass the test of compelling state interest, it must be ‘constitutional’ morality and not public morality. This aspect of constitutional morality was strongly insisted upon by Dr B.R. Ambedkar in the Constituent Assembly,” Narrain said.
Rebutting the “minuscule minority” argument used by the Supreme Court in 2013 to set aside the High Court judgment, he said, “If they go by size, it would be an opinion wrong in law. Even a single person’s fundamental right has to be protected.” He is hopeful of a positive outcome as the case is based on solid evidence. The material placed before the courts are of a high order: affidavits, first information reports, judgments and orders with objectively documented evidence of exploitation, violence, rape and torture suffered by LGBT persons.