LGBTI activists are eagerly anticipating tomorrow’s Indian Supreme Court hearing on Section 377, the country’s colonial-era law criminalizing homosexuality. These are excerpts from advance coverage:
By Siddharth Narrain
The court hearing comes just a over a month after … MPs in the Winter Session of Parliament voted down a motion to discuss a private member’s Bill, drafted by Congress MP Shashi Tharoor, that asked for section 377 to be amended to remove from its ambit consensual sex between adults.
The MPs’ refusal to even discuss the bill, let alone consider passing it, demonstrated that it is the judiciary that is best placed to consider the constitutionality of this law. Left to elected members of the legislature, section 377 is unlikely to be changed soon.
By Vaishna Roy
It is hard to believe that in 2016 we are still debating the legality of an individual’s sexuality, when in 2014 the Supreme Court’s historic NALSA judgment affirmed the fundamental rights and freedoms of the third gender. This surely is an unequivocal assertion of the right to equality of all persons. This right then logically extends first, to every individual whether heterosexual, homosexual or transsexual, and second, to every sphere of their lives, including how they choose to be intimate in the privacy of their homes. As writer Lesley Esteves says, “You cannot recognise their right to life and liberty and simultaneously criminalise their sexual life.”…
On Tuesday, when the Bench hears the curative petition, there is compelling reason to anticipate that the court will not allow even a fraction of Indians to live under a forced veil of secrecy or under the constant threat of violence anymore.
We queer people will do everything to ensure our liberty, even if it takes some Bollywoodising: It’s time to stand up, dance, and be counted.
By Vivek Divan
The court’s decision [restoring Section 377 in late 2013 by Supreme Court decree in the case of Koushal v Naz Foundation] reveals this line of thought … : We don’t know homosexual people, and if they do exist they are few and far between; given their tiny presence their concerns don’t merit the time of the apex constitutional court of India; let them meet their fate elsewhere i.e. Parliament. In this most tragic, and inequitable of judgments the Indian Supreme Court deemed homosexuals unworthy of its assistance, being that they were merely a “minuscule fraction”.
But back to the almost-Bollywood moment: When this bewildering line of pondering is being articulated I look around the room, and am about to tap the shoulder of a queer lawyer sitting in front of me – visualising that filmi instant when the few dozen of us queers in the courtroom (many of us in our lawyers gowns) stand up one by one, to show that here we are, always ready to be counted. …
I do know of the great harm that 377 has caused in many people’s lives. The media has covered stories of suicide by and abuse, extortion and violence against queer people over the years. But this is the tip of the iceberg, and these tragedies have seen an upswing since the pitiful decision in Koushal. On the first anniversary of the judgment, at a meeting held in Delhi to present firsthand accounts of this hate and sadness, the testimonies were heart-rending – of families shunning members, parents threatening children, public violence and police abuse and extortion. The words “beaten”, “assaulted”, “raped”, “banished” were constantly uttered. …
Years ago, I’d written with confidence that with truth on our side, we queers will prevail. I am still convinced that chicanery and small-mindedness will only be stumbling blocks on that journey. This is written to once again stake a claim to be a full person in this land. It is also to signal on behalf of queer people that we will not back down in using all the constitutional tools available to us to be liberated. And, in that process, we will continue to stand up and be counted, creating Bollywood moments in courtrooms and anywhere the occasion calls for.
BUT ALSO …
By Alok Prasanna Kumar
Unless there’s a dramatic change to established jurisprudence, the Court is unlikely to interfere with its earlier judgement on IPC Section 377.
The very fact that the Supreme Court wants to give an open court hearing to see if Koushal should be overturned suggests that the judges might have some second thoughts about the correctness of Koushal. Whether this actually leads to the overturning of Koushal is still to be seen – though, barring a dramatic change to established jurisprudence by the Supreme Court, it seems highly unlikely.
For more information:
- Orinam’s archive of articles about Indian courts and Section 377
- The Hindu: LGBT group hopes for Sec 377 abolition (Feb. 1, 2016)
- Times of India, Chennai: LGBT activists pin hopes on SC’s Feb 2 hearing (Jan 31, 2016)
- New Indian Express: Apex Court to Hear Curative Plea on Sec 377 (Jan 30, 2016)
- Mid-day: We are not minuscule, say Mumbai’s LGBT community members (Jan 30, 2016)
- Bar and Bench: NAZ curative listed for February 2; Will the Supreme Court reverse its S.377 ruling? (Jan 29, 2016)
- Huffington Post: On Feb 2, Supreme Court Should Do The Right Thing: Rethink Section 377 (Jan 29, 2016)
- DNA: Day of Reckoning for LGBT Rights: SC to hear petition challenging Sec 377 on Feb (Jan 29, 2016)
- FirstPost: Section 377: Supreme Court to hear curative petition on 2 February (Jan 29, 2016)
- Scroll.in: Supreme Court to hear pleas against ruling on Section 377, which posed threat to LGBT rights (Jan 29, 2016)
- Business Standard: SC to hear in open court curative plea on homosexuality (Kan 29, 2016)
- Business Standard: Decriminalisation of homosexuality: SC to consider curative petition in open court (April 4, 2014)