LGBTQI+
Privacy is intrinsic and so is sexuality
Section 377
The Infamous Section 377 of Indian Penal Code (IPC) was enacted by the British government in 1860. It states:
Unnatural offences.—Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[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.
It is interesting to note that while the British government decriminalised homosexuality in 1967 and legalised same sex marriage in 2014, India’s fight against Section 377 is ongoing.
Fight Against section 377
The fight against Section 377 reached the judiciary system in 1994 when AIDS Bhedbhav Virodhi Andolan (ABVA) filed a petition in the Delhi High Court to repeal the contentious section. The petition was dismissed in 2001 as the organisation failed to follow through.
The Naz Foundation filed another petition in the Delhi High Court in 2001 which was dismissed by the Court in 2003. The Naz Foundation appealed the decision in the Supreme Court in 2004. The Supreme Court instructed the Delhi High Court to reconsider the case.
In 2009, the Delhi High Court passed a historic judgement[1] by decriminalising homosexuality among consenting adults on the basis that it is a violation of Articles 14 (right to equality before law), 15 (prohibition of discrimination) and 21 (protection of life and personal liberty) of the Indian Constitution. But the Delhi High Court also clarified that Section 377 will continue to govern non-consensual penile, non-vaginal sex and penile non-vaginal sex involving minors.
The two-judge bench of the Supreme Court reversed the Delhi High Court’s decision in 2013[2] stating lesbian, gay, bisexual, and transgender (LGBT) persons constitute a miniscule fraction of the country’s population and the courts cannot decide the constitutionality of the law enacted by the Indian Legislature just to protect so-called rights of LGBT persons.
In author’s view each individual has some inherent rights which are based on constitutional doctrine. These rights cannot be dismissed by mentioning ‘so-called’ even if these rights concern only a small fraction of the society. It should not matter if the rights belong to just one individual or the entire nation the rights should be equally applicable to all.
Privacy on a stronger footing
A nine-judge constitutional bench of the Supreme Court delivered its judgement in right to privacy case[3] in August 2017. The bench held that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.
Justice Chandrachud in his judge’s notes, mentioned that sexual orientation is an essential attribute of privacy and it lies at the core of the fundamental rights. These rights apply equally to all and denying the right to privacy on the basis that LGBT persons constitute a miniscule fraction of India is not sustainable. He also mentioned that rights of LGBT people cannot be constructed as “so-called rights”. This is an inappropriate construction of privacy. He concluded his views on role of privacy in individual’s sexual preferences by stating that the constitutional validity of Section 377 should be decided in an appropriate proceeding before a larger bench of Supreme Court.
The privacy judgment recognised and respected the sexual preference and orientation of the LGBT community and held sexual orientation as inherent part of privacy. The judgement has safeguarded individuals’ right to protect their personal choices. This will encourage more people to embrace their true selves and step out of their closets.
New petitions have been filed in the Supreme Court seeking to quash Section 377 after right to privacy judgement. Keshav Suri, the Executive Director of Lalit Hotels contended that he had lived under the constant fear of being prosecuted for exercising his choice of sexuality. He has filed a plea in the Supreme Court. Twenty students (current and former) from Indian Institute of Technology (IIT) have filed a petition challenging 377. The plea filed was on behalf of the LGBT alumni association of the IITs, which claims to have over 350 members.
Clear division on the stand on homosexuality can be seen in the nation. Indian Psychiatric Society (IPS) is standing in favour of the community. IPS for the first time announced its official stance on homosexuality by mentioning that homosexuality should not be considered as an illness. Dr Ajit Bhide, President of IPS, in a video uploaded on social media said that mental health professionals are oriented to accept homosexuality as a variation and not aberration.
India also witnessed alleged ban of movie ‘Love, Simon’ while other nations celebrated pride month (June). Love, Simon is an American movie about a teenage gay protagonist who is exploring his sexuality. Central Board of Film Certification (CBFC) claims that they gave certificate to Love, Simon in February 2018 but no reason as to why the movie has not been put in theatres is clear. The movie could have helped many teenage homosexuals to come out to their friends and family and reflected on what it means to be a part of rainbow communities.
The nine-judge constitutional bench has placed strong precedent on previous judgements making it hard to defend the existence of Section 377. A five-judge bench headed by the Chief Justice of India, Dipak Misra, will commence the hearing on Section 377 after passing judgement on the validity of the Aadhaar act.
LGBT community has fought really hard to get the legal acknowledgement but fight against society’s perspective towards the community will prove to be much more difficult battle. Indian politicians and religious leaders are trying really hard to prove that homosexuality is against the cultural ethos and is a mental disease and should not be promoted. India is arguably trying to embrace the diversity that exists in the society; caste, religion, political believes, culture, dialect. It is time for India to at least acknowledge the diversity that exists in sexual preferences.
[1] Naz Foundation v. Govt. of NCT of Delhi
[2] Suresh Kumar Koushal v. Naz foundation
[3] Justice K.S. Puttaswamy (Retd.) v. Union of India