September 6 holds a special significance for the LGTBQ+ community in India. Three years ago on this day, the Supreme Court of India, in a landmark judgement, unanimously struck down parts of Section 377 of the Indian Penal Code (IPC), which criminalised gay sex, saying that it violated the constitutional right to equality and dignity.
A five-judge constitutional bench headed by the then chief justice Dipak Misra on 6 September 2018 read down parts of a 158-year-old colonial-era law under Section 377 that criminalised homosexuality. The bench which also included Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra delivered a verdict that decreed consensual sex between same-sex partners not criminal.
Interspersed with the words of Goethe and Leonard Cohen, Shakespeare and Oscar Wilde, the mammoth 495-page path-breaking verdict ushered a new era of freedom and liberation for the LGBTQ+ community. It brought about the much-needed change the community was desperately seeking for decades.
On behalf of the Modi government, Additional Solicitor General Tushar Mehta had stated that the Indian government will not contest the challenge to section 377 and will leave the judgement to the SC’s wisdom, so far as the SC limits the constitutional validity of section 377 to ‘consensual acts of adults in private’.
The LGBTQ+ group’s struggle to uphold the validity of their individual rights at par with others was long and arduous. However, it could have been relatively easier and less tortuous if it were not for the Congress party’s prejudice against the queer community.
The British introduced Section 377 in India almost 80 years before its independence. It was imposed on pre-independent India in conformity to the Christian principles on which the British empire was founded. Although England struck down the draconian law in 1967, it took India more than 50 years to do away with the archaic statute.
All this while, most governments at the centre were led by the Congress party, which demonstrated little interest in redressing the historical wrongs perpetrated against the LGBTQ+ community. In 2009, the UPA-II government had the golden opportunity to outlaw the controversial Section 377 and emancipate the queer community from its atrocious provisions. But, it squandered the opportunity and it took almost another decade for the law to be deemed obsolete.
On the third anniversary of the annulment of Section 377, it is worth revisiting the perfidy of the Congress party that got the decriminalisation of homosexuality deferred by almost 10 years.
UPA-II’s dithering stance on scrapping Section 377, files contradictory affidavit in Delhi HC
On July 2, 2009, the Delhi High Court gave a momentous verdict in the Naz Foundation v. Govt. of NCT of Delhi case. A two-judge bench held that treating consensual homosexual sex between adults as a crime is a violation of fundamental rights protected by India’s Constitution.
The Government of India, under the leadership of Manmohan Singh, embraced an agnostic approach at the time, filing contradictory affidavits in the Delhi High Court in the aforementioned case. The Ministry of Home Affairs (MHA) had sought to justify the retention of Section 377 IPC, while the Ministry of Health and Family Welfare insisted that Section 377 IPC had hampered the HIV/AIDS prevention
Leaning on the findings of the 42nd Law Commission, the Home Ministry in its affidavit said the Indian society “by and large” disapproved of homosexuality and the disapproval was strong enough to justify it being treated as a criminal offence even when the adults indulged in it in private. The Home Ministry also cited prevailing societal norms and principles to claim homosexuality cannot be “morally condoned”.
The Congress-led UPA government had even blamed the Indian society for not demonstrating “readiness and willingness to show greater tolerance to practices of homosexuality” while arguing in favour of keeping the sections under the statute. In essence, the Home Ministry contended that the Indian population and society was not sufficiently compassionate and empathetic to understand the hardship, the injustice meted out to the LGBTQ+ community to accept the decriminalisation of homosexuality.
On the other hand, the Ministry of Health and Family Welfare argued in their affidavit that Section 377 is counter-productive to the efforts of HIV/AIDS prevention and treatment. It said the LGBTQ+ community are identified to be at greater risk of acquiring and transmitting HIV infection due to a high level of risky behaviour and insufficient capacity or power for decision making to protect themselves from infection.
Rejecting the Union government’s stance that social morality dictates retention of Section 377, the Delhi HC observed: “Thus popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21. Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong.”
The Delhi HC, in a landmark judgment, decides to strike down section 377, saying it violates the fundamental rights to life, liberty, and equality as enshrined in the Indian constitution. It ordered the Union government to bring relevant legislation in the parliament to outlaw the British-era statute that condemned in perpetuity a sizable section of society and forced them to live their lives in the shadow of harassment, exploitation, humiliation, cruel and degrading treatment at the hands of the law enforcement machinery.
However, the Congress government at the time dragged its foot on the matter and used dilatory tactics to delay formulating legislation as suggested by the Delhi High Court, which later led the Supreme Court of India to decriminalise gay sex.
Supreme Court reverses Delhi HC’s decision on Section 377, pins the blame on Congress-led UPA’s duplicity
In 2013, the apex court overturned Delhi HC’s decision and blamed the Manmohan Singh government at the centre for the entire mess surrounding the invalidation of Section 377. The Supreme Court lambasted the Centre for sitting on Delhi HC’s verdict for four years without taking any firm action in one way or the other.
Essentially, the top court lashed out at the Congress government for giving confusing signals over its stand on the issue. Justice G.S. Singhvi while pronouncing the verdict said the government’s inaction and consistent about-turns on the issue were to be squarely blamed for the current predicament that has prompted the Supreme Court to decriminalise homosexuality.
Slamming the Congress-led UPA government over its appalling abdication of duty, the Supreme Court bench ruled that creating or amending legislation is the sole prerogative of Parliament and asked them as to why they had not acted even 13 years after a law commission report sought deletion of the section, for which several demands were made in the past. The court said their indecision on the matter revealed that the government wanted the section to remain in the statute.
The apex court opined that the verdict from the high court will be valid only till Parliament amended the law in accordance with the recommendations made by the Law Commission in its 172nd report and remove uncertainty over it. Justice Singhvi repeatedly asked the advocates representing the Centre why Parliament had not settled the issue and left it for the court to intervene.
“Courts are bound to define law when called upon to interpret it in a particular manner but such issues can’t be dealt with by the courts alone,” the SC bench had observed.
However, this was not the first time that the Congress government had received a thorough tongue-lashing from the top court. In March 2012, about one and a half years before the court decriminalised homosexuality, the Supreme Court had pulled up the government for its lackadaisical approach in treating an issue as important as gay rights. The court had then observed that the government was too casual in addressing the issue and condemned them for its apathetic attitude.
The UPA government drew the ire of the apex court for its consistently wavering stands on homosexuality. After arguing against decriminalising gay sex, the Centre’s advocate spoke in favour of Delhi HC’s verdict passed in 2009. The court lashed out at the government, asking it to not make a mockery of the system.
Additional Solicitor General Mohan Jain representing the Centre told the SC bench that as per the government decision there is no legal error in the Delhi High Court verdict which had decriminalised gay sex in 2009. The stand taken by Jain, who appeared for the Union Health Ministry, was in stark contrast to the one taken by Additional Solicitor General P P Malhotra, who had appeared for the Ministry of Home Affairs and had opposed the decriminalisation of gay sex, saying that decriminalising Section 377 would be “immoral, unethical and abhorrent”.
“We don’t know in how many cases they have been neutral. This is one of the peculiar cases where the Centre, which had contested the matter in the high court, is taking a neutral stand,” observed the bench.
Former Law Minister Kapil Sibal confesses not everyone in the UPA favoured decriminalising homosexuality
Years later, when the Supreme Court finally struck down the draconian law, Congress party’s Kapil Sibal hailed the verdict and provided reasons as to why his party-led government could not bring the law as suggested by the SC. Sibal revealed that not everyone in the party and the alliance was in favour of decriminalising homosexuality. This, he cited, as the primary reason why the Congress party could not forge consensus on the issue during its rule.
“In order to bring a law, you have to develop consensus. Laws are not thrust down people’s throats. And to build consensus is not easy especially in an issue (like) this …which has huge ramifications on society. So while some were very much in favour of doing away with 377, not everybody was on board,” Sibal, who was a Law Minister in 2013, candidly confessed in his interview with Indian Express.
Sibal’s revelations also brought to the fore how the Congress party shunned its responsibility and relied on the Supreme Court to resolve the constitutional imbroglio. “In any case, there was an appeal pending in the Supreme Court. So, we thought that it is best that an appeal would be taken up and the court takes a decision based on the provisions of the Constitution. I am very happy that the court has now taken a position.”
After SC reversed Delhi HC’s 2009 ruling, the Centre had filed a review plea, laying bare the Congress government’s duplicity in tackling the issue. It was an elephant in the room for the Congress party when the Delhi HC asked it to fulfil its constitutional duty and formulate a law that decriminalised gay sex. The Congress and other UPA alliance partners undertook every measure to refrain from taking any definite stand on the issue lest they offend either of the two constituencies—those supporting decriminalisation of Section 377 and those who opposed it. Once SC had passed its verdict, the Centre yanked itself out of the self-induced slumber and tried to project itself as a regime that cared about the individual rights of the queer community. It made a beeline to file a review petition challenging SC’s verdict.
The pivot was perhaps to placate its supporters, especially ‘liberals’, who were angry with the government’s meandering approach on diluting Section 377. But the theatrics did not help in persuading the SC from reviewing its decision and the plea was rejected in early 2014. In a sense, the Congress-led government’s muddled tactic of hedging their bets on the issue was emblematic of policy paralysis, apathy and pusillanimity that had come to define its scam-tainted legacy, where political preservation and keeping the coalition together had taken priority over protecting the rights of the citizens.