By Suman Naishadham
Heavy hopes rest on the curative petition that will be brought before the Supreme Court today as the final appeal available against the December 2013 judgment that preserved the validity of Section 377 of the Indian Penal Code. The ruling, which repealed the landmark 2009 Delhi High Court’s decriminalisation of gay sex, has since worn the patience of India’s LGBTQI community and compromised its safety as well as its access to healthcare. Today’s juncture breathes hope into the community’s tortuous 15-year battle for justice but it is important to temper this hope — expressed through candlelit vigils in cities across the country — with an understanding of the legal background on which the petition hinges.
Here are four reasons why:
1. The precedential value of review petitions
Today’s curative petition follows the January 2014 Supreme Court order that summarily rejected eight review petitions filed by the Centre government, Delhi-based NGO Naz Foundation, LGBTQI activists and others against the 2013 ruling. Justice HL Dattu and Justice SJ Mukhopadhaya comprised the two-man bench that dismissed the petitions as lacking merit, seeing “no reason to interfere” with the order in a disappointing decision that led Naz Foundation to file the last-recourse curative petition.
Today’s hearing will unusually be conducted in an open-court setting (as opposed to closed-chamber), but keeping expectations slim is wise given the overlap in judges who oversee reviews and curative petitions. Even with the expanded five-judge bench headed by Justice TS Thakur, a decision to abolish the Court's 2013 ruling seems unlikely given its previous unwillingness to consider any of the petitioner’s pleas and the generally low rate of success of curative petitions. The fact that Naz Foundation’s curative petition will be heard, generating attention across the country and world about India’s LGBQTI community’s long struggle, may remain the highlight of day’s events.
2. The restrictive parameters of curative petitions
The Supreme Court has allowed just two curative petitions to date. A relatively new judicial process, it was introduced in 2002 (Rupa Ashok Hurra versus Ashok Hurra), to enable the Court to reconsider a previous judgment in the “exercise of its inherent powers.” However, the grounds on which the Court entertains curative petitions are restricted to where it finds a “gross miscarriage of justice,” a violation of natural justice, or a suspected bias by a presiding judge.
Since the Koushal judgment resulted from a facial, or non-specific, challenge to Section 377’s constitutionality, an overhaul or reading-down of the provision based on Naz Foundation’s body of evidence of LGBTQI abuse is doubtful given the Court’s past reasoning that the community comprised a “minuscule fraction” of the population, and therefore, did not amount to the necessary aberration of justice. Additionally, even if today’s petition does lead to a reading-down of Section 377, “the provision will remain in the statute books and could very well be abused by the police to harass minorities,” writes Akila RS, visiting faculty at National Law University in Delhi.
3. The court’s textual take on Section 377
The 2013 Suresh Kumar Koushal judgment is perhaps most noteworthy for the court’s textual interpretation of Section 377, whereby it maintains that the provision only criminalises acts of “carnal intercourse against the order of nature” but does not target identities, orientations or genders. Such a reading of the law effectively places the regular police abuse, extortion, and harassment of the LGBTI community, all of which Naz Foundation and other gay-rights activists have cited as effects of upholding Section 377, outside the ambit of the Court's order.
It eliminates a nexus between the 2013 re-criminalisation of gay sex and the “gross miscarriage of justice” necessary to allow a curative petition. Ironically, the Court’s dedication to a textual analysis in light of the remarkable April 2014 National Legal Services Authority versus Union of India judgment, which recognised transgender people as a third-gender, could result in its continued denial that Section 377 targets LGBTQIs and lead to a defense of the law in order to prosecute child sex-abuse and other non-consensual, non-procreative sexual acts.
4. The Grim Option of Legal Reform
If today’s curative petition proves unsuccessful, the path forward would be to push, once more, for the abolition or amendment of Section 377 in Parliament. This option understandably warrants pessimism given the speed with which Parliament dismissed Shashi Tharoor’s proposed amendment to the bill in the Lok Sabha, 71-24, in late 2015. The justification cited by opponents varies from opaque, historically baseless “Indian culture” reasons, a dedication to the Indian Penal Code, to perhaps most disheartening, a commitment to majority-only issues.
Still, in the Supreme Court’s willingness to hear today’s petition, after a wait of almost two years, there is some reason to hope that it will reconsider Section 377’s influence in the anti-majoritarian struggle that is securing LGBTQI rights. If overturning Koushal fails, it will be imperative that activists utilise resources available to the LGBTQI community, such as state legislatures and those politicians willing to continue pushing for reform.
The author is a political science graduate from New York University and is a Hyderabad-based freelance writer. She tweets @SumanNaishadham