Section 377 verdict: How the rainbow war was won

Almost exactly 20 years ago in the autumn of 1998 my then boss Advocate (Now senior Adv) Mr Anand Grover give me a brief to draft a petition challenging the constitutionality of section 377 of the Indian penal code.

There were a lot of internal discussion and debates about how best to approach a petition decriminalising section 377 on constitutional grounds. We are talking of a period when it was not possible for us to approach the court and directly say we are citizens of this country, please give us our right to have sex the way we want. 

Therefore the petition as I drafted it then was couched in the language of healthcare rights. We said that section 377 prevented healthcare intervention with men who have sex with men and therefore impeded HIV interventions, which in turn led to an increasing epidermic amongst such men. We argued for that this is a violation of their life and equality and therefore section 377 should be done away with. In many ways we were getting into battle with our hands tied.

However in line with the laws of unintended consequences, the petition led to effects we had not anticipated to begin with. The very fact that a petition challenging the constitutional validity of section 377 led to community wide debates and nationwide consultations amongst LGBTQ, regarding the best approach to the pending case before the Delhi High Court. 

In the meanwhile, the BJP government in the state of UP, under CM Rajnath Singh (Now the Union Home Minister) had conducted the Lucknow raids on Bharosa and Naz International, and arrested people for trying to prevent HIV from men who have sex with men. This act of blatant homophobia against people who were working squarely within the confines of the policy of the government of India, also angered the community and propelled them to act.

The passage of the case in the Delhi High Court was not smooth. There were many ups and downs including at one time when the case was dismissed by the court and we had to approach the Supreme Court to get the case reinstated in the Delhi High Court. However paralleling the process of the case was the fact that outside the court the community was following the case and mobilising to support those who are fighting for them within the court. Every up and down in the case brought the community together, and the consultative process along with this feeling of solidarity lead to what I believe is the LGBT movement of India. The entire community of the nation could focus on a common enemy and mobilise itself to fight it.

This empowerment of the community also encouraged Various groups to come together and form a collective called “voices against 377” which filed an intervention petition in the Delhi High Court, directly claiming the citizenship rights of homosexual people as being trampled by 377. 

Ultimately on 2nd of July 2009 we had a verdict from the Delhi High Court delivered by Justices Shah and Muralidhar. It declared section 377 of the Indian penal code to be violative of the Constitution of India, and squarely dealt with the question of morality by stating that the state is not concerned with individual morality or molarity of groups, even if they be the majoritarian morality, but should actually confine itself to the morality as enshrined in the Constitution of India.

One of the direct consequences of the judgement as passed by the Delhi High Court was the complete disappearance of cases of extortion, blackmail, and threats by police against the LGBT community members within the territorial limits of Delhi. Those cases disappeared over the next four years and became almost zero. 

But the good days did not last for long. An Astrologer by the name of Suresh Kumar Kaushal, possibly under Baba Ramdev, had approached the Supreme Court and filed a special leave petition against the judgement of the Delhi High Court. Like a pack of wolves, a whole bunch of religious and other similar fundamentalist or conservative organisations representing the entire spectrum of religious identities in this country soon approached the Supreme Court and joined hands with Kaushal.

The hearing of the Kaushal case in the Supreme Court was concluded by February 2012. Yet the judges sat for more than 1 1/2 years on it and did not do anything. On the day one of the judges who sat on that bench, namely Justice Singhvi was to retire (11th Dec 2013), they passed judgement, overturning the judgement of the Delhi High Court, and reinstating criminalisation of homosexuality by putting back section 377 into the statute books.

From the very beginning it was obvious that the judgement in the Kausal case was probably more the result of the animus of the judges than of any sound judicial reasoning. It spoke of things like minority rights need not be protected and the court had no job doing it when the Parliament is existent. It dismissed the right of the entire LGBT community by calling them minuscule minority. It was poorly written and poorly reasoned, and immediately was pilloried by jurists from across the world, and not just India. For all intents and purposes the judgement as passed in the Kaushal case had become an embarrassment for the institution of the Supreme Court of India.

The community of course kept up its effort to overturn the judgement in the Kaushal case, and had, after the failure of its petition to review the judgement, filed curative petitions which were accepted by the court. While the curative petitions were pending before the court, probably for the first time, the Supreme Court of India had an opportunity to deal with the Kaushal case while hearing the PuttaSwami case pertaining to the right to privacy of individuals. 

When the right to privacy judgement was passed, Justice Chandrachud writing for the majority effectively overturned the Kaushal judgement by pointing out in detail all the flaws that the judgement carried. Yet, the matter was not about section 377 and therefore the section 377 matter was kept pending before another bench of the court to deal with.

While all of this was happening, various prominent individuals, including people who were affected by section 377, begin approaching the court with various petitions, and the court in its wisdom accepted these petitions and decided to hear them first, without going into the curative petitions which were already pending. These are the set of petitions that were decided today, and once again the court has passed an historical declaration that section 377 is violative of the fundamental rights to life, liberty, equality, and privacy.

Lives of LGBT people are not affected merely by criminalisation. The flowering of their lives as complete individuals can happen only when all other right that should be given to every citizen of this country are also given to LGBT people. These rights include the right to marriage, the right to inheritance of property, the right to dissolution of partnership, the rights of cohabitation, the rights pertaining to maintenance, non-discrimination in the workplace, non-harassment, anti-bullying laws, antidiscrimination laws, rights to surrogacy and/or adoption, rights to insurance of partners, spousal pension rights, and many other such rights.

The courts have kept the door open to the follow-up towards these rights. Those battles have to be fought by the community with an homophobic and conservative government, that has already started making noise against the granting of such rights. No fight for emancipation of an entire community is without struggle. The struggle for decriminalisation was almost 20 year long. The time is set now for all the future struggles to happen. 

But as the anthem says, we shall overcome some day! And be equal and dignified in our country! Our judiciary and our constitution is our hope, and our armour.

The author is a Supreme Court lawyer.