Supreme justice in sight for LGBT community?

LGBT community is pinning hopes on the apex court for freedom, rights and legal recognition of their existence, which have eluded them even in independent India whose Constitution vouches for liberty, equality and justice. They seek striking down of Section 377 which criminalises their sexual relationships

At last, natural justice appears to be on the way for the LGBT (lesbian, gay, bisexual and transgender) community. The Supreme Court on Tuesday referred eight curative petitions by the LGBT activists, challenging the Section 377 of the 1860s era IPC, to a five-judge Constitution Bench as it involves serious Constitutional issues.

A corrective measure, it is widely welcomed by the LGBT people who were shocked by a Madras High Court judgment on Monday that homosexuality could be a ground for divorce.

For ages bitterly discriminated against for no fault of theirs, the community has been pinning hopes on the apex court for freedom, rights and legal recognition of their existence, which have eluded them even in independent India the Constitution of which vouches for liberty, equality and justice.

Curative petitions have been filed by those aggrieved by the December 11, 2013 judgment of the Supreme Court, which stated that Parliament should take a decision on invalidating the Section 377, which holds consensual sexual intercourse among them as “against the order of nature.”

A curative petition is one filed by an aggrieved party which is entitled to relief against the final judgment/order of the Supreme Court after dismissal of a review petition. It may be recalled that the apex court had earlier dismissed review petitions filed by the Centre and gay rights activists against its December 2013 verdict.

The Section 377 reads as follows: “Unnatural offences—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 a term which may extend to ten years, and shall also be liable to fine.”

The LGBTs as well as increasingly concerned sections of India society demand that the 156-year-old colonial law be set aside as ultra vires the Constitution. It may be recalled that the euphoric joy at the July 2009 forward-looking verdict by the Delhi High Court soon gave way to intense agony for the LGBTs since the apex court ruling in 2013.

The Delhi High Court had ruled that the Section 377 was violative of the Articles 21, 14 and 15 of the Constitution as it criminalised the consensual sexual acts of adults in private. The Lawyers Collective which moved the Delhi High Court on behalf of Naaz Foundation in 2001 persisted and fought in the apex court which set up a constitution bench to hear its curative plea.

Looked down by the society, the LGBT community is hounded by an insensitive community and its laws even post-Independence. As winds of change are sweeping even the conservative societies the world over, a major political party in India, BJP, and its mentors RSS and the like are bitterly opposed to extending any rights to the LGBT community which is more sinned against than sinning.

The Supreme Court left it to Parliament in 2013 to decide on the fate of the draconian Section. But, the BJP, which is the only national party to officially support criminalisation of homosexuality, has been thwarting any attempts for legal remedy. Last winter saw a futile bid by Congress MP Shashi Tharoor to push through a private bill in Parliament for an amendment to the law–it was just voted out sans any debate.

The government fended it off, citing the December 2013 verdict of the Supreme Court. Not only the Hindu forces, even the so-called mainstream of arts–cinema, drama, art, literature–have for long ridiculed the LGBTs and sneered at their existence. However, for the past two decades or two, liberalism has been winning LGBTs supporters in the country who want an end to the historical wrong, err, crime against fellow natural human beings.

The rights activists through Naz Foundation have been arguing in the courts that the Section 377 defeats spirit of Articles 14 (equality before law), 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth), 19 (Protection of certain rights regarding freedom of speech) and 21 (protection of life and personal liberty) of our hallowed Constitution.

Ruth Vanita and Saleem Kidwai, authors of Same-Sex Love in India: Readings from Literature and History, researched and pointed out the rightful place, though discreet, to same-sex couples in the Hindu literary works like Kathasaritsagar and Kamasutra, as well as right in the carvings on the Sun Temple in Konark, Odisha.

Thus, though their birth has never been considered as against the nature even by the Hindu scriptures, the self-proclaimed leaders of Hinduism are woefully against them, in contrast to liberal reforms in other religions. The diversity and openness of the world’s most liberal religious are sought to be suppressed and any resurgence of such values was branded as western influence in the last 68 years of independent India.

It may be noted that the blame HIV/AIDS spread in India heaped on the LGBTs, arguing against same sex intercourse, has been disproved as the LGBT people forbidden into a closet under a cloak of morality and force of law are not coming forward to seek any help. Their risky practices in secret are thus cited as a major reason for perpetuity of AIDS in India.

Whatever their physical nature, it is in protecting such minorities, however small they are, that the justice system as well as liberal ethos of a country are explicit. The apex court rightly seized a historic opportunity to take a rationalist view of a regressive law, deliverance from which is ardently hoped for by the LGBTs.