India’s Supreme Court Poised to Make History by Decriminalising Homosexuality

[Maitreyi Gupta is an International Legal Adviser for the International Commission of Jurists, Based in India.]

The Supreme Court of India will soon deliver its judgment in a historic case — Navtej Singh Johar et al v. Union of India and others — on the criminalization of consensual same sex relations in the country.

Branded outlaws by the law, lesbian, gay, bisexual and transgender (LGBT) persons have been at the forefront of the struggle for full equality, demanding recognition of their human rights, in light of India’s Constitutional and international human rights law.

The Supreme Court’s decision will be a watershed in the jurisprudential recognition that LGBT persons’ rights are human rights.

During hearings that concluded on 17 July 2018, Senior Advocate Mukul Rohatgi underscored how Navtej Singh Johar and other LGBT petitioners in the case “are not only seeking protection as sexual minorities, but recognition of characteristics that inhere to all human beings”.

Advocate Menaka Guruswamy further argued that, “these people deserve to be protected by their court, their Constitution, and their country”, and said, Section 377 “is not about sex but about love and it must be constitutionally recognized.”

Together with 73 other countries India criminalizes consensual same-sex relations by making “carnal intercourse against the order of nature” illegal under Section 377 of the Indian Penal Code, a provision that is a relic of India’s British colonial past. In practice, it makes illegal all non-normative sexuality, branding LGBT people outlaws, and denying a fundamental characteristic of their identity.

While criminal convictions under Section 377 are rare, its existence facilitates extortion, harassment and blackmail of LGBT persons by the police, as well as by their families and communities.

Other vague and overly broad provisions criminalizing, among others, public nuisance, sex work and beggary are also similarly used to harass and persecute LGBT people in the country.

For instance, in 2016, F, a transgender man and activist, arrested while assisting transgender sex workers, told the ICJ,

“[The police] took me to the police station and beat me with a stick….I spent that night in the [police] station. The police took my phone. My lawyers couldn’t get through and the police did not allow me to inform my family about the arrest. I wasn’t given any food or water”.

F was charged in 2009 with committing a “public nuisance”; however, three years later, without any explanation, the case against him was dismissed.

The legal struggle to decriminalize same-sex relations in India started in 1991.

It has seen many setbacks, most notably the Indian Supreme Court’s 2013 decision dismissing the LGBT community a “minuscule fraction of the country’s population’, and upholding the validity of Section 377.

In response, several renowned Indian LGBT individuals came forward for the first time in 2016 to file petitions demanding both decriminalization and recognition of their non-negotiable and inalienable rights to dignity, equality, liberty, and non-discrimination.

The petitioners have urged the Supreme Court to repeal Section 377 insofar as it applies to consensual same sex relations, but more notably they have also pleaded for a recognition of their right to intimacy as integral to their right to life, as well as a recognition of their rights to express their sexual orientation; to form associations; and to non-discrimination in housing, education and employment, among others.

Parents of LGBT persons, mental health professionals and teachers, who also petitioned the Supreme Court, have further asserted that Section 377 violates the constitutional right to fraternity, that is, ‘respect for the dignity of another’.

They have invoked B. R. Ambedkar, the father of the Indian Constitution, to draw comparisons between the discrimination Ambedkar faced as a Dalit and the discriminations faced by LGBT persons in present day India.

With this case India’s Supreme Court may well make history: by decriminalizing consensual same-sex relations and recognizing the full range of LGBT persons’ human rights.

It bodes well, judging by some of the statements made by some of the judges on the nine-judge bench hearing the case: “Section 377 is not about a sexual act, but is about the lives of the LGBT persons”, and “the law should not enable social opprobrium”.

A watershed decision is required by and would be consistent with India’s international human rights law obligations.

For instance, India and other States criminalizing consensual same-sex relations have been urged by the United Nations Human Right Committee to “guarantee equal rights to all individuals… regardless of their sexual orientation”.

The Indian Supreme Court’s judgment is also crucial because the direction it takes has transnational importance as other countries, especially former British colonies, will be looking to it as they hear similar legal challenges.

By merely decriminalizing, India would follow in the recent footsteps of, among others, Trinidad and Tobago, Seychelles, Nauru and Mozambique.

But by coupling decriminalization with the recognition of the full range of LGBT persons’ human rights, India would set its own precedent, one for others to follow.