A curative petition, and the Supreme Court’s better judgment, is now the only hope against Section 377.
In four brusque sentences, the Supreme Court has refused to review its own judgment that upheld Section 377 of the Indian Penal Code. Section 377 not only makes criminals out of consenting homosexual adults, it also turns its glowering eye on oral or anal sex between heterosexuals, and places these acts on the same footing as paedophilia, bestiality and rape.
While the Delhi High Court had, in 2009, read down this section as violating constitutional morality, citing Articles 14 (equality), 15 (non-discrimination) and 21 (life and liberty, including privacy and dignity), the Supreme Court undid this considered verdict last December, one that also had the Union government’s unambiguous support.
The Supreme Court lost the opportunity to affirm sexual freedom and human rights, and suggested that the legislature was a better forum to decide on the matter. This is a near-impossible feat, given the short amount of parliamentary time left, the government’s depleted authority in the House, and the principal opposition party’s clearly stated support of Section 377. This case, though, is not about the delicate separation of powers. Legislatures represent collective social morality, and cannot be expected to take great leaps of the moral imagination or antagonise their constituents — it is up to the court to defend the disadvantaged, and interpret constitutional rights with sagacity.
The Delhi High Court judgment had laid out how discrimination on the basis of sexual orientation contradicted the principles of equality and inclusion, a compelling and humane reading that the Supreme Court did not fully engage with. It is indeed difficult to explain how a certain section of adult Indian citizens can be deprived of constitutional protections on the basis of their sexual activity; humiliated and denied for loving how they love.
Given that a precedent of this sort can take decades to dislodge from within the court with another case, the only hope now is a curative petition to be heard by a five-judge bench, including the chief justice of India, three senior judges and the judge who ruled on the case. The petitioners (which includes the Centre) will have to establish that natural justice was violated.
Much depends on the wisdom of this bench, and the Supreme Court’s willingness to self-correct. Apart from that, there must be a focused campaign to change minds, to pressure and persuade legislators, to reveal Section 377 as an abomination against human rights.