SC dismissed the review petitions filed against the validity of Section 377 of IPC. LGBT people not disheartened; to continue struggle.
The Supreme Court of India has dismissed the review petitions filed against its decision of 11.12.2013 in which the Court had upheld the validity of Section 377, Indian Penal Code, which prohibits all forms of homosexual acts between consenting adults.
Rejecting the petitions, the bench of Justices H.L. Dattu and S.J. Mukhopadhyay held that they see no reason to interfere with the impugned order. The judges decided the matter in a chamber hearing by circulation and did not give an opportunity to the Petitioners to put forth their arguments in open court, which was specifically sought by Naz Foundation and the other petitioners. The rejection of the plea for oral hearing is particularly disheartening, as the judgment failed to consider a number of important arguments of the Petitioners and also contained several grave and manifest errors of law. The Supreme Court ought to have at least heard the contentions raised by the original petitioner, Naz Foundation, along with six other Petitioners, including parents of LGBT persons and mental health professionals, as well as the Union of India, who had assailed its earlier decision. By failing to do so, the Court failed to exercise its review jurisdiction in its true spirit.
In dismissing the review petitions, the Supreme Court has once again completely ignored the impact of decriminalisation of the LGBT persons, after the Delhi High Court judgment in 2009. In the last four years, thousands of LGBT persons became open about their sexual identity in their families, educational institutions, work places, amongst others. Many homosexual men disclosed their same sex relationships to their families and friends, on the basis that such intimate relations were no longer criminalised. In undoing the fruits of freedom and equality that were hitherto enjoyed by the LGBT persons in post-2009 period, by recriminalizing them and in refusing to rectify the same, the Supreme Court has done a great disservice to its own jurisprudence in upholding the rights and dignity of the marginalised populations in India, including the LGBT community.
However, LGBT people believe that these setbacks have only made the LGBT community stronger and more united in their struggle for a just and equal world. The fight against Section 377 in legal, social and political arenas will continue incessantly, until the law is removed from the statute book. The community also draws its strength and support from the civil society groups, intellectuals, political parties and the public at large, amongst others, who expressed their outraged with the earlier SC decision. This is truly indicative of the fact that the Indian society has largely moved on in the last four years and in fact now supports the demand for decriminalisation of homosexuality. The fact that the Union of India was the first Petitioner to file a review petition against the earlier SC decision had galvanised the whole community, still reeling from the shock of recriminalisation.
It is a pity that the Supreme Court has failed to recognise this change today but it is fervently hoped that it will do so very soon and reconsider its earlier decision. Till then, the struggle will continue.