By Annie Khan ‘14
When India’s Supreme Court struck down a ban on gay sex in 2009, gay rights advocates celebrated the ruling as an important step in the country’s nascent movement. But the feting proved premature. Last December, India’s high court reinstated the ban, and a month later slapped down an initial appeal. Now gay rights advocates have one final chance to appeal to the court before an anti-gay provision of the Indian Penal Code — Section 377 — becomes the settled law of the land for the foreseeable future.
Section 377 has haunted (and re-haunted) India’s LGBTQ community for decades. Drafted in 1861 under British colonial rule, the original wording does not criminalize the act of being homosexual, but rather outlaws the act of sodomy (or as the wording of the section describes, “intercourse against the order of nature”).
A social media backlash erupted when the Indian Supreme Court decided in December that Section 377 barred consensual homosexual activities between adults. Indians, both at home and around the world, were appalled by this turn of events. How could a progressive and democratic country like India reverse such a hard fought judgment just four years later? How could it tell the world that Section 377 is not only constitutional but also acceptable and enforceable?
In addition to enjoying broad public support, gay rights advocates have marshaled three main constitutional challenges to Section 377. Not coincidentally, each argument bears resemblance to American jurisprudence. Similar to how American constitutional law wended its way toward greater rights for homosexuals — beginning with Bowers and onto Lawrence — some Indians, despite being disheartened by the high court’s recent reversal, still hope such a legal path will be carved out by their own country’s courts.
One argument presented by representatives of the Naz Foundation, the organization that first challenged Section 377, is that homosexuals are being targeted as a class, which violates equality before the law under Article 14 of the Indian Constitution (similar to the United States’ Equal Protection Clause of the Fourteenth Amendment).
The attorneys also argue that ‘sex’ amounts to ‘sexual orientation,’ and that if gender discrimination is unconstitutional, so too should homosexual discrimination under Article 15 of the Indian Constitution.
Finally, the petitioners make an Article 21 argument grounded on the principle of personal liberty. As was decided by the U.S. Supreme Court in Griswold in 1965, this challenge is based on the idea that the Indian government should not be able to interfere within an individual’s zone of privacy.
In response to the high court’s reinstatement of Section 377, former Justice Leila Seth, the first woman to become Chief Justice of a High Court in India (and whose son is gay), wrote an opinion article in the Times of India saying, “what has pained me and is more harmful is the spirit of the judgment. The interpretation of law is untempered by any sympathy for the suffering of others.”
To the further disappointment of Indian gay rights advocates, last month a two-judge appellate bench of the Supreme Court said there was “no need to revisit the court’s December ruling that reinstated Section 377 of the Indian Penal Code,” according to the Wall Street Journal. The Naz Foundation has since vowed to file a “curative petition” to the Supreme Court, which represents “the last stage of the appeal process, is intended to remedy gross miscarriages of justice and is heard by a panel of five judges, including three of the most senior.”
If the curative petition fails, the issue will have to be addressed by India’s parliament. But as the New York Times points out, “Given the fractious nature of India’s Parliament, the conservative views of many of its members, and the political stakes in the run-up to [the general election] next spring, the legislature is unlikely to take up this issue on its own.”
That means the curative petition is the last opportunity for India’s Supreme Court to get it right. The suffering Seth describes in her op-ed is what speaks to so many of us, within in India and well beyond. Hopefully the court will not be untempered by sympathy when it takes up the issue one final time.