Section 377 Supreme Court hearing: Will homosexuality remain a punishable offence when this is over?

By Prarthana Mitra

In what is hopefully the last lap of the longest constitutional case in India, the apex court on Tuesday began hearing pleas seeking the repeal of Section 377 of the Indian Penal Code (IPC) which criminalises homosexuality. Formal attorney general Mukul Rohatgi commenced arguments in the Supreme Court for petitioners from India’s LGBTQ community demanding the protection of sexual orientation and freedom to live and love according to those preferences.

A bench comprising the Chief Justice of India (CJI) Dipak Misra, Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra notified that it will only hear written petitions and not the pending and limited curative petition by Naz Foundation.

Key takeaways from the first day of the hearing

Former attorney general Rohatgi said the LGBTQ community members have faced persecution and loss of employment because of the social stigma perpetuated by the 165-year-old provision in

Section 377 is an Indian law formulated in 1861, an artefact of British colonialism, to criminalise homosexuality and deviant behaviour.

Rohatgi opened proceedings on a positive note for the LGBTQ community, saying that they deserved the same rights as all members of society and having a different sexual orientation was not a matter of personal choice but an orientation that one is born with. Driving this distinction home is an important milestone for queer rights in this country, where homosexuality continues to be regarded as synonymous with mental illness, abnormality and perversion.

Senior Advocate Arvind Datar, appearing for a petitioner, echoed the same sentiments saying that if a person has a different sexual orientation, it can’t be treated as a crime. “The object of penal code is to identify an offence and punish for the same so that it acts as a deterrant. But when it is a natural orientation, then how can it be an offence?”, he asked, besides stressing on the need to strike down on the privacy verdict which eclipses Secton 377.

Referring to the Hadiya and the Triple Talaq cases, he added that privacy encompasses decisional autonomy which means sexual orientation is also covered as a corollary to that. Justice Chandrachud also mentioned that the right to choose a partner fell under Article 21, as held in the Haidya judgement.

Furthermore, the IPC section even holds anal sex between heterosexual couples a crime which clearly indicates the code’s real intent to surveil the private lives of citizens and hold them culpable based on regressive and primitive moral codes.

Datar further argued that it only makes logical sense to extend the protection already offered to transgenders under Article 14 to those with different sexual orientation. Rights of the community must be constitutionally recognised and not referred to as “so-called” rights. Advocate Saurabh Kripal began his arguments before the court adjourned for the day.

All India Mahila Congress tweeted Tuesday evening stating, “The fight against section 377 of IPC has been long and tedious. India stands for plurality and equality. , which criminalizes homosexuality, is a violation of fundamental human rights guaranteed by constitution.”

A brief history of queer identity in India

“To criminalise the right to love is profoundly cruel and inhumane”, said then 83-year-old Leila Seth in 2014, in a Times article titled “A Mother and a Judge Speaks Out on Section 377”. “My son is not a criminal,” said the mother of author Vikram Seth, a month after a Supreme Court bench overturned the judgment of the Delhi High Court that decriminalised homosexuality in 2013. A long battle with precedence of innumerable jurisdictions lay ahead of the five-court bench and their potentially historic decision to amend, uphold or repeal Section 377.

Having said that, recognition by law is important but it is only the first hurdle, not the finishing line to securing the rights of the LGBTQ community. Repealing the penal code won’t change public attitude to homosexuality overnight, not until social taboo attached to non-binary gender identities is overturned, right down to the molecular level of villages, localities and households.

Why we (badly) need the law

Rajya Sabha member and senior BJP leader Subramanian Swamy on Tuesday said that homosexuality (“it”) is not a normal thing. “We cannot celebrate it. It’s against Hindutva. We should invest in medical research to see if it can be cured. Government should consider having a seven or nine judge bench,” he said. This came right after the top court denied the government’s appeals to stay the hearing for a later date.

As long as such perceptions are propagated by representatives of the centre, people will continue to remain in the closet. At this juncture, therefore, the only way to offer them social dignity, identity and inclusivity is through political, legal and legislative assimilation.

Once passed, the decriminalisation law can and must be supplemented with laws to protect the community from atrocities and discrimination, especially at the workplace. But if our struggles with class have taught us anything, this is going to be a long journey.

Prarthana Mitra is a staff writer at Qrius

LGBTQSection 377