Section 66A gone, now what about Section 377?
Denying gays rights seems to go beyond the spirit of the Constitution in a way that is as urgent as, if not more than, the denial of freedom of speech.
- Total Shares
With the Supreme Court scrapping Section 66A of the IT Act, the image of a reformist Supreme Court has again gained ground after the terrible defeat to gay rights the SC handed out in December 2013. In that judgement the Supreme Court upheld the validity of Section 377 of the Indian Penal Code which criminalises homosexuality, and asked Parliament to take a call on the issue. (To be fair, the SC has shown welcome zeal towards the rights of the transgender, granting them the "third gender" status in a judgement last year.)
To gay men holding their breath since that terrible December morning, yesterday, the March 24 judgement offers hope. To be sure, the two cases are not nearly the same. While the deliberate vagueness of Section 66A invited the court's ire, the court had read Section 377 as an intrinsic part of the IPC and decided itself unfit to take a call on the Section's constitutional validity. Even so, the language used by the court in yesterday's judgement is instructive: "Our Constitution provides for liberty of thought, expression and belief. In a democracy, these values have to be provided within the constitutional scheme."
I am not a legal luminary but denying gays rights to life and liberty seems to go beyond the spirit of the Constitution in a way that is as urgent as, if not more than, the denial of freedom of speech. It is therefore curious that the same Court had chosen to evoke the legislature's prerogative in scrapping 377 in December 2013. One can't help feel that the court sided with majoritarian principles rather than principles of justice in deciding that case. Its language mirrored its intent, calling gays "a minuscule minority".
As has been noted elsewhere, the court appears as a monolithic entity to the outsider when it is anything but. Which bench hears which case is an essential element in how the judgement will turn. Justice Shah, who delivered the 2009 Delhi High Court order decriminalising homosexuality and who is something of a rockstar for the gay community, has delivered a string of judgements that speak for the rights of women, the differently-abled and which cover the environment. In general, the court is expected to decide cases on the precepts of constitutional validity and in tune with what has been decided by other eminences. Which is why the December 2013 judgement was so shocking.
One argument that has diluted the public campaign against 377 is the assertion that the law is rarely applied in practice. Indeed, to the out gay man the law does not matter since it cannot be used as an instrument of threat. But this fact does not capture the broader Indian norms under which many gay men remain closeted all their lives and open themselves to intimidation under the law when they seek sex. Also, as the case of the Bangalore techie showed, there are gay men in this country who choose to get married, yet continue to deny their wives conjugal rights. The police invoked 377 in that case on the insistence of the wife, an event that was tragic whichever way one looked at it.
Besides, even to out gay men, the lack of any legal safeguards can entail half-lives. The hope is that the scrapping of 377 would pave the way for laws allowing gay men to, first, go for civil unions and later marriage. This is important so that gay couples can have the same rights to shared property, health cover, etc that straight couples take for granted. This will also ease the mantle of raising children which so many gay couples cannot do in India today for lack of a legal structure.
On a personal note, a lot of debate in the country about gay rights has been tangled up with the so-called "gay lifestyle" which, according to various versions, straddles from an obsession with sex to a fixation on death. Some gay men, such as I, have picked up those brickbats and turned them into flowers with which to adorn ourselves. Others continue to hanker for the stability that this largely straight world and its processes, including the Indian judiciary, will bestow on us. I am not the greatest fan of the begging bowl but for the sake of my brethren I ask that you, and in this "you" I include everyone who has treated us as the "other", let us have a tiny sliver of the dignity that you so gloriously bask in.