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--------------- Print Magazine --------------
  May 2016
  April 2016
Cover Story
Decriminalizing Homosexuality

Curative Adjudication or Corrective Legislation
Hemant Kumar, Contributing Editor
With the Supreme Court recently adopting an unprecedented course of action by referring a set of curative petitions vis-à-vis the vexed issue of decriminalizing consensual homosexuality to a Constitution Bench, it remains to be seen how and when the matter would be adjudicated therein. However, the same cannot be an impediment in case the incumbent ruling dispensation, provided it wisely desires so, endeavours to bring in an appropriate legislation in this regard although as of now the possibility of the same seems highly unlikely.

On February 2, 2016 a Three-Judge Bench of the Apex Court comprising the Chief Justice of India (CJI) TS Thakur and Justices AR Dave and JS Khehar while hearing a bunch of curative petitions in respect of dismissal of review petitions preferred against a December 11, 2013 judgment of the Supreme Court in Re: Suresh Kumar Koushal v. Naz Foundation (SK Koushal's Case ) directed that since the issues sought to be raised were of considerable importance and public interest and since some of the issues had constitutional dimensions including whether the curative petitions qualified for consideration of the Court in the light of the judgment of the Supreme Court in Rupa Ashok Hurra's case, it would be more appropriate if those petitions were placed before a Constitution Bench comprising Five Hon'ble Judges of the Court.

One must remember that the Apex Court in Rupa Ashok Hurra's case ruled that though the Judges of the highest court do their best, subject of course to the limitation of human fallibility, yet situations may arise, in the rarest of the rare cases, which would require re-consideration of a final judgment to set right miscarriage of justice complained of. In such a case, it would not only be proper but also obligatory, both legally and morally, to rectify the error. The duty to do justice in such cases shall have to prevail over the policy of certainty of judgment ( see Box ). As never in the past, a curative petition, the concept of which was itself conceived in the ibid ruling, has been hitherto referred for adjudication by a Constitution Bench, it would be interesting to watch fresh proposition(s) of law as likely to be laid down, if any, in this regard.

Be what may, the latest development has, of course, given a ray of hope to the LGBTQI (Lesbian, Gay, Bisexual, Transgender, Queer and Intersex) community across the country whose enthusiasm and hysteria which erupted after a July 2009 historic judgment of the Delhi High Court by its then Chief Justice AP Shah and Justice
S Muralidhar, paving way for what may be termed as 'decriminalizing consensual homosexuality', got shattered in the aftermath of a Two-Judge Bench judgment of the Apex Court comprising Justices GS Singhvi and SJ Mukhopadhaya reversing the same in SK Koushal's judgment (December 2013) following which even the Review Petitions resorted to thereof also got dismissed in January 2014, after which the only left remedy of preferring curative petitions was resorted to.

It is pertinent to mention here that the much-hyped ruling by the Delhi High Court as referred to above was delivered in Re: Naz Foundation v. Govt of NCT of Delhi, which declared Section 377 of the Indian Penal Code (IPC), in so far as it criminalizes consensual sexual acts of adults in private, as violative of Articles 21, 14 and 15 of the Constitution although it was ruled that provisions of Section 377 IPC would continue to govern non-consensual penile-vaginal sex and penile non-vaginal sex involving minors. At that time, this verdict stirred up a hornet's nest within the legal, political and social circles of the society.

Although the Indian "Gay" community, which hitherto continues to live under a veil of secrecy, welcomed the aforementioned ruling with much fanfare, terming it as historic and progressive, various religious leaders and socio-cultural organizations, the so-called moral torch-bearers of our society, lambasted the ruling as disastrous and against cultural, moral and social values of the Indian society.

Thereafter, a section of leaders from such organizations as well as certain so-called public- spirited individuals moved the Supreme Court by way of Special Leave Petitions (SLPs). In March 2012, the Court reserved its verdict over the matter which was pronounced in December 2013 on the eve of retirement of Justice GS Singhvi.

Here it also merits due reference that in late-November last year, during The TimesLit Fest, the Union Finance Minister, Arun Jaitley said that the Supreme Court's view ( in SK Koushal's ruling) was not in sync with the jurisprudential development on gay rights world over while adding that the Apex Court must review its 2013 judgment to do away with the penal provision in Section 377 IPC as far as gay relationships are concerned. "When millions of people world over are having alternative sexual preferences, it is too late in the day to propound a view that they should be jailed. The Delhi High Court's view appears more acceptable," opined Jaitley.

Speaking just afterwards, his immediate predecessor and senior Congress leader
P Chidambaram also echoed the same views asserting that the Delhi High Court verdict decriminalizing gay sex was a wonderful one and the Supreme Court should have stayed with it. Also, when on 2 nd February, 2016, the Supreme Court referred this issue to the Constitution Bench, he was quick to react asserting that he was happy that an error was being corrected.

Although this rare unanimity displayed  by country's two big legal eagles belonging to ruling BJP and principal opposition Congress is highly welcome,  one wonders if their assertions as aimed at advocating 'gay rights' really depict their own individualistic viewpoint or else it is  just a 'rhetoric' aimed at disseminating an affirmative  signal so as to lure the LGBTQI community across the country?

This is because when the Apex Court in December 2013 in its judgment also held ( See Box) that if a competent legislature so desires, it can repeal or amend Section 377 IPC, the then UPA-2 dispensation led by the Congress Party did not take a call over this issue; instead they just promised to do the needful  by  incorporating in its election manifesto for General Elections-2014. The relevant extract in its manifesto mentioned "The Indian National Congress will enact a law to ensure that consensual sexual relations between adults of the same-sex, are not criminalized."

As regards BJP, the promise to even kickstart a wider public debate over the issue, much less any endeavour to do the same, did not find a mention in its election manifesto for the reasons best known to the rank and file of the party. Reportedly , the saffron outfit and its affiliates working under the aegis of Sangh Parivar has been covertly, if not overtly, opposed to decriminalizing homosexuality as it considers the same as against Indian traditional culture and moral values. Hence, amidst all this, the chances of the ruling Modi Sarkar bringing a corrective legislation in this regard seem too bleak.

In December 2015, the Chairperson of the 20 th Law Commission of India and the then Chief Justice of Delhi High Court, Justice AP Shah who will always be remembered for penning the remarkable Naz Foundation's ruling (July 2009) decriminalizing consensual homosexuality, while speaking over a lecture devoted to " Section 377: From hostility and hatred to courage and freedom ", expressed the hope that the political climate in the country at present was right to bring about a change in the law against homosexuality by repealing Section 377 IPC, as key representatives of major political parties have criticised the Supreme Court verdict that struck down decriminalising of gay sex but the move would depend on the extent to which the parties as a whole were prepared to "bite the bullet" and truly embrace inclusiveness and fraternity as being the guiding spirits of the Constitution. (See Box)

Noteworthy to mention here that just days thereafter, the Lok Sabha rejected the move of Dr. Shashi Tharoor, Cong MP to introduce a Private Member's Bill in the House aimed at decriminalizing homosexuality by seeking to suitably amend Section 377 IPC. Perhaps, Dr Tharoor was encouraged after one Tiruchi Siva, DMK MP whose legislation also tabled in his private capacity viz . Rights of Transgender Persons Bill, 2014 was surprisingly passed by the Rajya Sabha in April 2015, a year after the Supreme Court in " NALSA v. Union of India (April 2014)" recognized this category as "Third Gender" for all purposes.

It is also worth mentioning here that the then 15 th Law Commission of India (LCI) headed by Justice BP Jeevan Reddy in its 172 nd Report titled "Review of Rape Laws" submitted in March 2000 suggested that in light of changes suggested by it in Section 375 IPC, it is of the opinion that Section 377 IPC deserves to be deleted. After the changes as suggested in Sections 375 to 376E, the only content left in section 377 IPC is having voluntary carnal intercourse with any animal. It was recommended to leave such persons to their just deserts.

Although for years altogether, there was no follow-up action over the ibid Report of the LCI, but in December 2012 when the Criminal Law (Amendment) Bill, 2012 was tabled in the Lok Sabha, it proposed both rechristening the term " Rape" with "Sexual Assault" thus making it gender-neutral as well as widen its scope by covering other (unnatural) sexual acts including 'cunnilingus' and 'fellatio' apart from usually regarded 'sexual intercourse'. Also, the Criminal Law (Amendment) Ordinance, 2013 as promulgated in the aftermath of nation's outcry over Delhi Gangrape (Nirbhaya) incident, incorporated the same albeit elucidating their literal meaning so that it can be properly understood by one and all.

“It is now time that procedural justice system should give way to the conceptual justice system and efforts of the law courts ought to be so directed. Gone are the days when implementation of the draconian system of law or interpretation thereof were insisted upon - flexibility of the law courts presently is its greatest virtue and as such justice-oriented approach is the need of the day to strive and forge ahead in the 21st century,” The Supreme Court of India in Rupa Ashok Hurra’s Case (April, 2002), the case in which “Curative Petition” concept was envisaged.

But when in April 2013 the Criminal Law (Amendment) Act, 2013 was finally enacted, the term "Rape" was retained in the newly substituted and now prevailing Section 375 for reasons best known to our learned law-makers. Thus this provision no longer remains gender-neutral although it nevertheless duly covers certain sexual offences which were earlier considered as against the order of nature or 'un-natural'and thus dealt under Section 377 IPC, e.g. anal sex, inserting any object or other part of body into the vagina, urethra or anus as well as applying one's mouth over the same but as all with regard to a woman hence for the sake of covering the same in respect of a man or else like a transgender, Section 377 IPC needs to be suitably 'amended' and not 'repealed' from IPC by substituting the term "voluntarily" with "forcibly" or "without consent et al ". Further, as a special piece of legislation viz. Protection of Children from Sexual Offences (POCSO) Act, 2012 has been enacted to cover such offences in respect of minors/children, there seems no need to invoke Section 377 IPC as regards them.

In fact, our principal substantive criminal statute viz. IPC itself being a relic of colonial past, warrants an immediate thorough overhauling in terms of contemporary need and challenges rather than resorting to piecemeal amendments. Even the penal statutes of UK, the country from which we have inherited our IPC, decriminalized consensual homosexuality close to half a century back in 1967 but we are still continuing with the archaic criminal provisions imposed upon us during British Raj. What an irony!

“While parting with the case, we would like to make it clear that this Court has merely pronounced on the correctness of the view taken by the Delhi High Court on the constitutionality of Section 377 IPC and found that the said section does not suffer from any constitutional infirmity. Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General.” Justice G S Singhvi, then Supreme Court Judge in SK Koushal v. Naz Foundation (December 2013)

Further, in June 2015, the United States of America became the 23 rd country in the world to legalise same-sex marriages after the country's Supreme Court made a path-breaking decision to rule that it is now legal for all Americans. Last year, the Republic of Ireland became the first country in the world to do so by a popular vote/referendum.

As far as the issue of legalizing homosexuality in our country is concerned, one thing must be understood by all those who are vociferously opposing the same that heavens will not fall by doing so. What the Delhi High Court ruled is only decriminalizing consensual homosexuality in private. When such sex would be consensual, that too among adults and in private place, what is that which is giving sleepless nights to these people? Already such kind of sexual behaviour/orientation is prevalent but in a covert/hidden manner, as such persons apprehend social stigma and police/public abuse in the event of their revealing their sexual preferences in open.

If consensual homosexuality is decriminalized, it will be a boon for LGBTQI community since such people can then be easily identified and better focused upon for public health measures. The same ought not be viewed as a step towards glorifying or promoting gay/lesbian sex in our society.

“Today, the Supreme Court has the opportunity to correct the mistake it made in Koushal‘s case (December 2013) and redeem its glorious status as the protector of fundamental rights, by asserting that when it comes to the dignity of the individual and the fraternity, constitutional morality should trump religious and social morality,” said Justice AP Shah, former Chief Justice of the Delhi High Court while delivering VM Tarkunde Memorial Lecture (December 2015).

Last but not the least, since the subject of criminal law falls under the Concurrent List of the Seventh Schedule of our Constitution, the state governments can suitably amend IPC as far as their respective jurisdictions are concerned. Noteworthy that many states have been doing so periodically considering their area-specific needs and requirements or other reasons but one wonders why none has hitherto even endeavoured to bring a 'corrective legislation' to amend Section 377 IPC ?  Be that as it may, since once again the Apex Court, through its Constitution Bench as and when constituted,  is seized of the issue, it is highly hoped that the matter will be adjudicated expeditiously, preferably afresh and comprehensively, even if it requires re-appraising hitherto laid down contours of dealing with curative petitions.

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