Describing the Supreme Court move to overturn the Delhi High Court order that decriminalised consensual gay sex as narrowing down of human rights brought about by a medieval attitude,lawyers and activists fighting for the rights of the lesbian,gay,bisexual and transgender (LGBT) community Wednesday said they would explore both political and legal options for legalisation of homosexuality in the country.
Deeply disappointed and shocked by the verdict,the Naz Foundation and other petitioners said they were also examining the option of filing a fresh case to seek repeal of Section 377 of the Indian Penal Code. If such a petition is filed,it will be in addition to a review petition against the Supreme Court order,said one of the lawyers associated with the gay rights movement.
Section 377 deals with unnatural offences and states that whoever voluntarily has carnal intercourse against the order of nature with any man,woman or animal shall be punished with imprisonment for life,or with imprisonment of either description for a term which may extend to 10 years,and shall also be liable to fine.
When Naz Foundation and its fellow petitioners moved the Delhi High Court in 2001 seeking legalisation of gay sex between consenting individuals,it had not sought repeal of Section 377 merely that it be read down to make an exception for gay sex. That exception was granted.
Naz founder Anjali Gopalan said at that time they decided not to seek scrapping of this IPC section because it was the only penal provision available to deal with child sex abuse. Twelve years later,a dedicated law to deal with child sex abuse Protection of Children from Sexual Offences (POCSO) Act,2012 is in place. So,this last line of defence for Section 377,gay rights activists said,is no longer valid.
Anand Grover of Lawyers Collective said it is almost certain that a review petition will be filed but the track record of the fate of such petitions is abysmal.
There are two legal options. We shall most probably file a review petition… and following that,a curative petition… and continue to fight until we get a favourable order… The Supreme Court will itself reverse this judgment, Grover told a press conference.
The courts interpretation amounts to a narrowing down of human rights… never has the court so narrowly interpreted fundamental rights, he said.
Additional Solicitor General Indira Jaising said the verdict was a manifestation of double standards and loss of a historic opportunity to set things right.
It is a disappointment… it shows a medieval attitude towards the issue… It is surprising that the court,which does judicial review on many issues,has put the ball in the court of Parliament to decide on homosexuality, Jaising said.
Arvind Narayan,one of the lawyers fighting for LGBT rights,said the verdict was against the policy of inclusiveness.
It is a tragedy that this judgment is a fundamental betrayal of the Constitutional promise, Narayan said.
Other activists said this judgment will wash away any positive contribution towards the gay rights movement following the Delhi High Court order.
In the last four years,we had begun to receive some acceptance from society… health care professionals had begun responding to us… police did not ask as many awkward questions… all that got removed today… this judgment will only pile on the stigma against us, Lakshmi Narayan Tripathi,head of Astitva NGO for transgender,said.