The legal battle to overturn Section 377: an historic step for LGBT rights in India

Earlier this week, LGBTI and allied activists in India rejoiced over a historic step from the Supreme Court. “Today’s judgment reinstates our hope that another world is possible. A world where everyone’s human rights are affirmed and everyone can live with equal rights and privileges,” declared Geeta Misra, Executive Director of Creating Resources for Empowerment in Action (CREA), a Delhi-based feminist human rights organization and an AJWS grantee.

On February 2nd, India’s Supreme Court reviewed a curative petition against an earlier judgment to uphold Section 377 of the Indian Penal Code, which criminalizes sex “against the order of nature.” This draconian law is a relic of British colonialism that is primarily used as a means to criminalize homosexuality. The law contradicts the long history of sexual and gender diversity acknowledged in the literature, history, films and temples of India. This law is not unique to India, as similar colonial laws criminalizing homosexuality are on the books in 40 additional Commonwealth countries.

An historic step

This is only the fourth time that the Supreme Court of India has reviewed a curative petition in its history. Importantly and unusually, the Supreme Court held an open hearing and not only concluded that the full eight petitions should be heard, but that a five-judge bench should reconsider the Court’s earlier judgment and “constitutional dimensions of importance.” This means that the bench will go beyond the mandate of simply reviewing petitions and—by request of the Chief Justice—also conduct a comprehensive hearing of arguments around the law’s constitutionality.

Though many activists are cautiously hopeful, the appointment of this bench revives the legal battle to overturn Section 377 and take away the stigma and discrimination facing LGBTI people.

A bit of history

In 2009, the Naz Foundation filed (and won!) a lawsuit in the High Court of Delhi that declared Section 377 unconstitutional between consenting adults. The mood in the LGBTI community was jubilant. The hearing was a product of a long history of struggle and an accomplishment of more inclusive social movements—from feminist lesbian, bisexual and trans* women who had been increasingly gaining acceptance within the mainstream women’s movement to the mainstream HIV movement’s alliance with sex worker rights organizations through facilitating a public discussion on same-sex sexuality. There were also increasingly more positive depictions of LGBTI people in the media. While mass arrests, high-profile suicides and public shaming of LGBTI people persisted, the law provided recourse for people who were able to fight for their rights.

Despite these major steps forward, in 2013, a two-judge bench of the Supreme Court reversed the High Court’s judgment, upholding Section 377. In its decision, the Supreme Court recommended that any amendment or repeal of the law should be left to the Parliament to decide. It further described that LGBTI people are a “miniscule fraction of the country’s population” and thus argued that the law’s influence was insignificant.

Just five months later, another contradictory judgment came directly from the Supreme Court when it ruled in favor of the National Legal Services Authority (NALSA) to formally recognize the right to determine and express one’s gender, including a ‘third gender’ category. There is great hope that the latest ruling is a return to the Court’s position on non-discrimination on the basis of sexual orientation and gender identity.

The response

“Section 377 is used both to persecute as well as actively prosecute LGBT individuals,” said Danish Sheikh, an advocate with AJWS grantee Alternative Law Forum (ALF), which has been deeply involved in the movement and consulting on the petitions.

“The National Crime Records Bureau noted more than 1,000 registered cases under the section in 2014, the year after the Supreme Court delivered its verdict upholding the constitutional validity of the provision,” Danish said. “In terms of misuse, one of the major cases involved up to 13 people being arrested in 2013 on what strongly appears to be false charges. There are numerous such instances of the section being used for blackmail and harassment.”

Solidarity and Action Against the HIV Infection in India (SAATHII), another AJWS grantee, has been supporting transgender organizing to improve implementation of the NALSA judgment. Dr. L. Ramakrishnan, Country Director, Programs and Research at SAATHII, noted the increased incidents of public harassment and violence against trans* women after the Supreme Court upheld Section 377, as well as the challenging climate the law makes for “agencies working to facilitate access to health and social services for LGBT communities.”

Instead of devastating the movement, the judgment galvanized civil society to stand in solidarity with the LGBTI community across the country. Activists and allied organizations have been working to make LGBTI people more visible and build political pressure through demonstrations, documentation of human rights abuses, media work and community organizing.

From vigils to pride parades, a groundswell of activism forged new relationships to work toward a shared vision of justice and equity. Twelve organizations, including CREA and other AJWS grantees, formed Voices Against 377, a coalition from various social movements, and helped move one of the petitions to the court. Similarly, ALF is working to weaken laws like Section 377 by organizing a diversity of rights-based groups to craft a broad and inclusive non-discrimination bill and promoting equal protections for all to enjoy their full human rights.

Sunita Kujur, Director of Programmes and Innovation at CREA, summed up the feelings of the day:

“Many of us had hoped for a positive outcome today and were pleasantly surprised by the decision. It is a moment of celebration as we move towards a life of dignity, equality and non-discrimination for all.”

 

Raviva Hanser is a Program Associate for Sexual Health and Rights at AJWS.

Devashri Mukherjee is a Senior Program Officer for Sexual Health and Rights in India at AJWS.