Why the legal challenge to Section 377 is much stronger this time

Menaka Guruswamy, Harish Iyer, Ritu Dalmia, and Navtej Singh Johar | ThePrint

The battle against Section 377 has graduated from NGOs to LGBT people themselves, from sex to rights, from privacy to equality.

From 2001 to 2012, the legal challenge to Section 377 of the Indian Penal Code (IPC) was about sex and AIDS.

In 2001, Naz Foundation filed a public interest litigation arguing that they were an NGO working on HIV-AIDS, and Section 377 came in the way of their work.

Men who have sex with men (“MSM”) were a high-risk category for HIV-AIDS, it was argued, but the NGO found it difficult to work with this section of society because such sex, even consensually, was a criminal offence under Section 377 of the IPC. Thanks to the social stigma that 377 reinforced around homosexuality, and the police harassment of gay men, the community was invisible.

This was one of the main issues before the Delhi high court in the Naz case from 2001 to 2009. Another NGO, Voices Against 377, joined the case in 2006, arguing about the criminalisation and the harassment of the LGBT community.

When the Delhi high court decriminalised homosexuality in 2009, it spoke of fundamental rights. The judgment found Section 377 to be violative of Article 14 (equality before the law), Article 21 (right to life and personal liberty), and Article 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth).

Suresh Kumar Kaushal, an astrologer, appealed against this judgment before the Supreme Court. A bench led by Justice G.S. Singhvi felt it wasn’t the court’s job but that of Parliament to change the law. Whether or not homosexuality was acceptable in society was a social issue, and as such it was the legislature’s job to reflect that in law.

In doing so, the judgment rejected the idea that any fundamental rights were violated. In fact it infamously said, “The High Court overlooked that a minuscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders, and in last more than 150 years, less than 200 persons have been prosecuted for committing offence under Section 377.”

The Constitution of India says that the fundamental rights of even a single Indian cannot be violated. And that’s how the legal battle against Section 377 moved from PIL to writ petition, NGOs to individuals, sex to rights.

Curative petitions were filed, and the Manmohan Singh government itself filed a review petition. But these offered a limited scope since they had to look at whether the Supreme Court’s own judgment was correct.

From Naz to Navtej

In 2016, lawyer Menaka Guruswamy filed a writ petition on behalf of five accomplished Indians who identified themselves as LGBT. This was a remarkable shift. It wasn’t NGOs but LGBT people themselves saying ‘I am LGBT and my fundamental rights, guaranteed by the Constitution, are being violated by Section 377’.

This is how the petition begins:

Petitioner No. 1 Navtej Singh Johar is a Sangeet Natak Akademi Award winning Bharatnatyam dancer and Petitioner No. 2 Sunil Mehra is a senior journalist. Petitioners No. 1 and 2 live together and have been in a committed relationship since 1998. Petitioner No. 3 Ritu Dalmia is a famed restaurateur whose restaurants, TV shows and books have brought Italian cooking into homes across the country. Petitioner No. 4 Aman Nath is an expert on Indian art and culture who, together with the late Francis Wacziarg, his partner of 23 years, established the Neemrana chain of hotels to restore and preserve India’s historic buildings. Petitioner No. 5 (Ayesha Kapur) worked as a successful professional in the field of marketing, and is now a consultant in the Food and Beverages Industry.

Others joined in with similar petitions: hotelier Keshav Suri; transgender rights activists Akkai Padmashali, Uma Umesh and Suma M.; a group of parents of LGBT persons, activists Harish Iyer and Ashok Row Kavi; Arif Jafar, a gay man who spent 47 days in jail; and a group of 20 current and former IIT students.

All these petitions, being heard together, not only make for a stronger case but also assert that there is an LGBT community out there.

As a result, the issue now is more than just sex. It is also about rights – the right to freedom of speech and expression, the right to legal equality, the right to life and liberty.

The heart and soul of the Constitution

The Supreme Court can no longer say that it’s a minuscule minority that is affected, because this is not a PIL but a writ petition. Safeguarding the fundamental rights of every single citizen is the constitutional duty of the Supreme Court.

If an Indian citizen’s fundamental rights are violated, s/he can directly approach the Supreme Court through a writ petition for redressal. This right is enshrined under Article 32 of the Constitution which B.R. Ambedkar said was the “soul of the Constitution and the very heart of it”.

The present legal challenge against Section 377 is appealing to the heart and soul of the Constitution for a legal status equal to that of other Indians. The issue is no longer just the right to have sex in the privacy of one’s bedroom and not be called a criminal for it. The issue is no longer just the harassment by cops. The issue is the recognition of a sexual orientation different from the mainstream.

The change from Naz to Navtej Singh Johar, from PIL to writ petition, from sex to legal status, from privacy to non-discrimination is a powerful change with a long-term impact. The Supreme Court has already indicated it will read down Section 377, but the judgment will definitely be used to mount further legal challenges. It may be unthinkable today, but the Constitution of India will make same-sex marriages a reality sooner than we imagine.