Why is the SC Delaying the Order on Section 377 Criminalising Homosexuality?

Social Commentary

Why is the SC Delaying the Order on Section 377 Criminalising Homosexuality?

Illustration: Akshita Monga

Yesterday, one of the nation’s most controversial and confusing laws once again had its day in court – Section 377 that criminalises “unnatural offences”, including homosexuality. The five-judge Supreme Court bench, which has been hearing petitions questioning the constitutional validity of the Indian Penal Code article over the last week, had newsrooms across the country holding their breath. Op-eds and videos were probably ready for release, TV panelists were likely rounded up, considering that the bench, which includes CJI Dipak Mishra, had been making statements indicating that the article might be read down.

But alas, the final order eludes us, causing heartache among the LGBTIAQ community – and sending journalists and editors across the country scrambling. The court said yesterday that the decision would be reserved until all the petitioners had made written submissions and could be expected before October 2 at the latest.

What exactly went down in court yesterday?

First, a quick primer on Section 377. Established in 1861, Section 377 criminalises sexual activities considered against the “order of nature”, including homosexuality. You might remember 377 from a 2009 judgment by the Delhi High Court, that said that restricting the activities of consenting adults is a violation of fundamental rights. Or from the subsequent 2013 ruling by the Supreme Court that overturned the Delhi HC’s decision, so that 377 was once more in effect.

In the 21st century, the answer to whether the section should be repealed seems like an obvious “yes”. What’s different about Round 3 of Section 377 vs India’s LGBT+ community? For one, the government has promised to concede to the wisdom of SC, without contest. Tough beans for senior BJP leader Subramanian Swamy, who is already making dire pronouncements about the gay agenda being a threat to national security. If he read the news, he’d know that progressive rulings from South Africa to Trinidad and Tobago and Ireland highlight just how far India is lagging behind on LGBT+ equality. Including the UK, the country that basically wrote the Indian Penal Code.

So why is India stuck spending the better part of 2018 arguing over a law that has its roots in legislation that was passed while Henry VIII was King of England?

Because Section 377 is vague in its definition of what constitutes an “unnatural” act. Advocate Manoj George, arguing for 377 on behalf of two Christian organisations, claimed that striking down 377 would lead to legal issues, since the law does not make any provision for consensual relations between people of the same sex. As it stands, 377 can be interpreted to criminalise child abuse, forced penetration, bestiality, and any sex without intent to procreate. (This basically means that if you go down on your partner or have ever used a condom, you’re a criminal too.) Fellow pro-377 campaigner K Radhakrishnan took the license for interpretation to new heights when he claimed, in an amazing argument, that the law really has nothing to do with homosexuality.

In response, Advocate Menaka Guruswamy packed a powerful punch, pointing out that there are no laws specifically against homosexuality because its existence is not even recognised. And the SC appeared to be on her side – hardly surprising when an actual defence of 377, made by self-professed “logical person” Suresh Kumar Koushal, was that if it’s removed, jawans will be too busy doing the dirty to properly defend the nation. Justice Malhotra stated that homosexuality was not an aberration, and the bench said that decriminalisation would reduce social stigma.

While both the RSS and the All India Muslim Personal Law Board have bowed out from the debate, with the former having stated that homosexuality is not a crime, the religious opposition was led by the Christian organisations. Some of the most entertaining and nonsensical moments included a detailed table of all the possible sexual orientations (around 50, apparently) and Chief Justice Misra’s spirited endorsement of the poetry of John Donne. Not to be outdone, the sanctity of Hindutva was upheld by Radhakrishnan, who quoted the Manusmriti in an attempt to #MakeIndiaRigVedicAgain. Koushal tried to argue that Section 377 does not apply to women, and that lesbians and transsexuals don’t need to be brought into the discussion.

Perhaps the most vocal anti-377 supporter on the bench was Justice Nariman, who said that the SC could not wait for a “majoritarian government” to do the job of protecting human rights. He shot down dubious sources from pro-377 advocates with a couple of scathing, Instagram-worthy one-liners (sample: “When you remove credibility, you are left with incredibility.”)

If he read the news, he’d know that progressive rulings from South Africa to Trinidad and Tobago and Ireland highlight just how far India is lagging behind on LGBT+ equality. Including the UK, the country that basically wrote the Indian Penal Code.

Overall, the trajectory of the the four days of debate shows that Section 377 will most likely be struck down. Still, some questions remain. Will the SC stop at 377, or will they take this opportunity to address broader concerns about LGBT+ equality? How many more hysterical, all-caps tweets about threats from evil Western culture will we be forced to read? And, most gravely – what happens now to the activists who, for years, have made themselves and their identities known, even as the law that criminalises them still exists?

For those on the frontlines, there can be no making up for decades of dehumanisation, or loss of life, freedom, and dignity. With this reserved judgment, the justice that has eluded the LGBT+ community again will hopefully be delivered, in the form of firm, actionable anti-discrimination laws.

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