In 2013, a controversial Supreme Court judgement that re-criminalised homosexuality in India referred to the LGBT community as a 'minuscule fraction' of the country's population.
On Sunday, in Mumbai and various other cities across the country, members of the community held candlelight vigils in a show of strength and support just two days before the Supreme Court will take up a curative petition on Section 377.
The case currently stands at a crucial juncture. According to various reports, the Supreme Court is set to hold an open-court reconsideration of Section 377 of the Indian Penal Code (IPC) on February 2. Curative petitions are otherwise usually heard in judges' chambers, not in open court.
Violation of rights
In 2009, a two-judge bench of the Delhi High Court, in a landmark judgement, had held that criminalising consensual homosexual sex between adults, as Section 377 did, is a violation of fundamental rights guaranteed by India's Constitution and 'read down' the law, which means that in the court's opinion, the existing law was unconstitutional because it impinged on fundamental rights. The ruling was was widely considered a long overdue setting right of what was considered an archaic law.
But it was challenged almost immediately, by a group of astrologers and religious leaders. And on December 11, 2013 a verdict of the apex court re-criminalised homosexuality between consenting adults on the ground that Section 377 was not against the spirit of the Constitution.
A review petition by the Naz Foundation and others was rejected. The foundation and its fellow petitioners then filed a curative petition (which means that the petitioners are appealing to the SC to 'cure' a gross miscarriage of justice caused by the original judgement). This curative petition --- the final appeal available --- says that the effect of re-criminalisation on account of the Supreme Court's judgment has caused immense prejudice to LGBT-rights activists, who have been put at risk of prosecution.
“People often ask me what I think will happen on February 2, but I think for the LGBT community there is no option but to hope positive,” says equal rights activist Harrish Iyer. “No one should be pushed to a situation where they the only option is to hope. But we hope that the Supreme Court will listen to our views and realised that using phrases like minuscule minority is not right.”
Prominent queer rights activist Leslie Estevez says that while the candle light vigil, held in Mumbai at Girgaum Chowpatti, is important keeping in mind that this is the final stage in the case, it should not be seen as a last ray of hope: “The movement is stronger now than it was a few years ago. And we have got immense support from society at large and even from politicians. We know it is a question of when, and not if, same sex relations will be decriminalised in India.”
The alternative
Should a solution not work out with the court, other activists say they will take the movement to Parliament which has the ultimate power to repeal Section 377. Recently, Congress MP Shashi Tharoor introduced a Private Member’s Bill decriminalising homosexuality, but it was shouted out by the BJP-dominated Lok Sabha.
