In a disappointing decision, the Supreme Court recently dismissed a petition seeking review of the Suresh Kumar Koushal judgment that upheld the criminalisation of homosexuality in Section 377 of the Indian Penal Code. This unreasoned order was barely a few sentences long and quashed the hopes of law reform. Several analyses discussing the (de)merits of Koushal have already been published. The question that remains to be discussed is the way forward.
Section 377 of the IPC is an archaic colonial legacy that banned sexual intercourse “against the order of nature” in 1860. This was interpreted by Courts as including criminalisation of bestiality, child sexual abuse and also consensual homosexual intercourse. Though prosecution of consenting homosexuals was infrequent, Section 377 was used by the police to harass and intimidate sexual minorities. In addition, the existence of this provision also prevented sexual minorities from accessing sexual healthcare. It was in this context that several LGBTQ groups challenged the constitutionality before the Delhi High Court. The Court, in the landmark Naz Foundation case, struck down the provision insofar as it criminalised consensual adults from having homosexual intercourse. The effect of the decision was that though homosexual intercourse was no longer illegal, Section 377 would remain in the statute books and could be used to prosecute other “unnatural sex” acts.
Interestingly, the appeal against Naz was preferred not by the Government, which had defended Section 377 before the Delhi High Court, but by groups and individuals including Suresh Kumar Koushal whose interest in the litigation was his “moral responsibility and duty in protecting cultural values of Indian society”. After hearing the case at length, the Supreme Court overruled the judgment of the Delhi High Court and upheld the constitutionality of Section 377.
The Supreme Court reasoned that LGBTQ individuals constituted a “miniscule fraction” of the population and that Section 377 is not used frequently as there have been less than 200 reported judgments in 150 years of the law’s existence. The argument that the provision is vague and arbitrary, potentially rendering criminal most non-procreative sexual acts, was also not entertained. Gay rights activists’ plea that Section 377 criminalises a group of people and deprives them of equal citizenship was also rejected by a Court that held on to a textual reading that the law only criminalises certain acts but not people or identity.
The Koushal judgment understandably sparked widespread protests demanding the end of Section 377. In addition to popular mobilisations in civil society, petitions seeking review of the Supreme Court decision were filed. A two-judge bench comprising Justices Dattu and Mukhopadhaya, even without hearing oral arguments, dismissed the review petitions as having no merit.
Though review proceedings ordinarily render decisions final, the Supreme Court, in a 2002 decision (Rupa Ashok Hurra v. Ashok Hurra) established the curative petition that allows the Court to take up cases even after dismissal of review petition provided that it involves gross miscarriage of justice or violation of natural justice. This is an extraordinary process in which the Supreme Court can re-examine its previous decision in the exercise of its “inherent power” to do justice.
This route, while available, does not appear to be a hopeful one. Previous cases show that curative petitions are seldom successful, in part because the case will most likely be posted before the same judges who dismissed the review. Further the Court has been open to entertaining curative petitions only where violation of natural justice was observed: where concerned parties are not heard, or there is an apprehension that judge(s) may be biased. Since the review petition was dismissed summarily without even an oral hearing, the possibility of a successful curative petition appears slim indeed.
Even assuming that the curative petition is allowed and Section 377 read down to exclude consensual homosexual intercourse, the provision will remain in the statute books and could very well be abused by the police to harass minorities.
Section 377 was read down and not struck down in its entirety by the High Court only because, at the time of its decision, India did not have any specific laws to deal with child sexual abuse and this provision was crucial to prosecute such crimes. Section 377 has long outlived any utility that it may have had with the enactment of the Protection of Children from Sexual Offenses Act in 2012. The optimal solution, then, lies in repeal of Section 377 in its entirety.
Though the Congress party has condemned the Supreme Court decision and expressed, in principle, its support to repeal Section 377, such legislative amendment does not appear to be a priority. With the Parliamentary elections looming and the BJP supporting the colonial crime, for ostensibly “Indian culture” reasons, there is much pessimism about the possibility of law reform in the near future.
The Indian Penal Code is placed under the Concurrent List of the Constitution, meaning that both Parliament and State Legislatures are competent to amend it. In keeping with the federal structure of our governance, State Legislatures may amend a central law subject to approval of the President. Given the Congress party’s stand on the issue, the assent of the President may not be hard to obtain. However, the Parliament is competent to override any such State legislation at a later date.
Several regional parties, including those in power at the State level, have expressed their dissatisfaction with Section 377 but passed the buck to the Parliament requesting action at the Central level.
Though undoubtedly a slower and imperfect solution to the crisis, considering the present circumstances where the Supreme Court has abdicated its responsibility in upholding fundamental rights of its citizens and the elected government has thrown in the towel, the best way forward lies in legislative interventions at the State level. Considering that it was a State Court that championed the cause of sexual minorities where the Apex Court failed them, it is only appropriate that the State legislatures blaze a trail in this regard.
The writer is visiting faculty, National Law School, Delhi.
