Abolishing 377: A Historic Opportunity

Vivek Divan is a lawyer and queer activist who was part of the original team that litigated the Naz Foundation case challenging Section 377 in 2001, and has led extensive community engagement in relation to the case since then.

1. Why is the Supreme Court re-hearing 377? 

In 2013 the Supreme Court effectively re-criminalised homosexual sex by reversing the 2009 decision of the Delhi High Court in the Naz Foundation case, which had declared Section 377 of the Indian Penal Code in its application against consensual adults as violating constitutionally guaranteed Fundamental Rights. Section 377 was challenged as unconstitutional again in 2016 by two petitions on behalf of a group of gay men and women, and by a transgender person. In effect, these petitions questioned the court's 2013 decision. 

This was followed by similar challenges in 2018 by a Lesbian Gay Bi-Sexual Trans-Gender and Queer (LGBTQ) organization, a gay man who has been on bail after being arrested under Section 377 in 2001, a gay hotelier, and LGBTQ people from IIT. These petitions along with interventions made by Naz Foundation and other parties who had been before the Delhi High Court and the Supreme Court earlier (the collective of queer people and allies Voices Against 377, and mental health professionals), were heard by the Supreme Court recently based on the court's expressed view in January 2018 that its own 2013 decision required re-consideration. 

Notably, in 2017, while affirming the Fundamental Right to privacy in the Puttaswamy case, the Supreme Court cast doubt on whether its 2013 decision was correct and required re-consideration thereby opening the doors for a rehearing of the case a few weeks ago. 

2. What are some of the main arguments for legalizing the sexual rights of LGBTQ people? 

The arguments since 2001 when Naz Foundation filed its public interest petition in the Delhi High Court have been the essentially same - that in criminalizing consensual sex between adults of the same sex 377 violates several Fundamental Rights guaranteed by the Constitution - of life and liberty (including privacy and health), equality, and exercise of the freedoms of expression and association. Those seeking decriminalization argue that there is no justifiable interest in applying 377 to consenting adults, and that the court must declare it to be unconstitutional so that LGBTQ people are able to fully realize their Fundamental Rights, and live lives of dignity and self-worth.

3. What is it like to be an LGBTQ person in India today?  

One way of answering the question is to ask heterosexual people to imagine a world where the tables were turned - where consensual sexual conduct between straight people was punishable. Imagine that environment - where the fear of jail dangled over such a fundamental aspect of one's being, and consequently impinged on one's ability to live fully, express oneself honestly, and develop a sense of self-respect. Imagine also that such criminalization made any communication about heterosexual sex, including its health consequences potentially illegal. And, in such a world imagine that homosexuality was constantly drilled into the psyche as the only legitimate and moral way to be. The impact of such an environment would be highly damaging. Apart from the horrendous violence and ostracization that criminalization legitimizes on queer people, it is this sort of oppressive reality that queer people in India have lived with since colonization.

Of course, it is nobody's case that all sexual conduct should fall outside the purview of criminal law. For instance, forced, non-consensual conduct must have penal consequences. Therefore sexual violence of varying degrees is covered by punishment. But, when people who have the ability to legally exercise consent do so to engage in sexual activity with each other, the state has no business to enter such domains, which Section 377 allows it to do. The provision refers to "unnatural sex" and doesn't specify homosexual sex. Yet, it has been interpreted to mean non-procreative sex, and in its intent and use it has been overwhelmingly used to oppress queer people.

4. What is the genesis of this case? 

The history of the battle to rid India of 377 is a long one. Although queer activism in India began much before and has entailed much beyond this battle, the legal fight to rid India of the odious law became a rallying cry for many in the queer community. In terms of litigation it started with a case filed by the AIDS Bhedbhav Virodhi Andolan challenging the validity of the law in the mid-1990s at the Delhi High Court due to the refusal of the police to distribute condoms among inmates in Tihar jail on the basis that anal sex between men was criminalized. The huge toll that HIV and AIDS was taking on gay men began to be revealed through the work of Naz Foundation and other such NGOs in the late 1990s. Despite financial support from the Indian government to these NGOs to educate and empower men who had sex with men with health and prevention knowledge, the threat of criminal law made such work immensely difficult. The law was proving to be a barrier in gay men, hijras, and aravanis realizing their right to health. In July 2001 workers at the NGO Bharosa in Lucknow were arrested for distributing condoms among men engaged in homosexual sex, allegedly for aiding the crime covered by 377. 

The Naz Foundation realized that the fulfillment of many other Fundamental Rights was at stake due to the oppression caused by 377: due to the criminality of an essential aspect of their lives, queer people were less-than-equal from the get-go, fundamentally unable to express their innateness, and constantly fearful of their privacy being violated. Therefore the petition that was filed before the Delhi High Court addressed the constraints 377 put on all these rights. 

5. Moving beyond the legal aspects what defines the movement that has grown around 377? 

I've always felt that this case has happened as much outside the courtroom as it has in it. The petition galvanized an extraordinary process of consensus, debate and discussion on the effect of law, its role in people's lives and strategies to engage with it in and outside the courtroom. This occurred across a wide swath of the queer community, represented by activists and allies from across the country. It saw meetings being held on a regular basis, and attended by scores of queer men and women and transgender people to discuss ways in which the case could be strengthened through expert affidavits, personal testimonies, and data gathering on the use and impact of 377 on quotidian lives. 

These meetings were an occasion for the queer community to be educated about otherwise arcane judicial processes, and the risks and benefits of taking particular steps to advance the case. For instance, consensus built through large community discussions led to the appeal by Naz Foundation to the Supreme Court against the 2004 order of the Delhi High Court dismissing the petition on grounds of locus standi, and reinstatement of the case by the apex court. Another instance was the decision of Voices Against 377 to file an intervention in the Naz Foundation case, to bring forth the voices of queer community members through affidavits describing the violent impact of 377 on their lives. Notably, it was way back then, in 2007, that queer people in all their eloquence came before the courts to claim their rightful place. And, with them came their parents, along with mental health experts, and academics to place their perspectives before the court. All these parties joined the newer cases of 2016 and 2018 in the recent hearings, bringing their rich and deep understandings of the odiousness of 377 to bear on the court. 

This process of consultation and discourse has been unique to the Indian experience of queer emancipation. In many other countries where courts have heard similar cases, it has often been go-it-alone petitioners who have approached the courts to seek decriminalization. An extraordinary unity of purpose and sense of confidence was engendered through this unique process of engagement by ordinary queer people of extraordinary courage who truly represent the LGBTQ experience in India. Society at large saw this manifest itself in the joy expressed with victory outside the Delhi High Court in 2009, and the anger of defeat in 2013.