On Tuesday, the Supreme Court refused to reconsider its verdict that affirmed the legality of Section 377 and criminalized gay sex, dealing a severe blow to the government’s attempt to get the law changed through a legal — rather than parliamentary — process. The Court wrote, “We have gone through the review petitions and the connected papers. We see no reason to interfere with the order impugned. The review petitions are, accordingly, dismissed,” a bench of Justices H L Dattu and S J Mukhopadhaya said, dismissing a bunch of eight petitions in chamber proceedings.
Two options are now available before the government and the LGBT community to have the law overturned: the legal remedy of filing a petition in the Supreme Court, arguing constitutionality of Section 377; and seeking the parliamentary route to amend the law.
Under Section 377, voluntary “carnal intercourse against the order of nature with any man, woman or animal” is punishable with imprisonment from 10 years to life. On December 11, 2013, the Supreme Court ruled that gay sex was an offense “irrespective of age and consent”. This decision overruled the July 2009 Delhi High Court verdict that found Section 377 to violate Articles 14, 15 and 21 of the Constitution.
Gay rights activists groups described Tuesday’s decision as a major setback to the rights of the LGBT community and to the fundamental rights of all Indians. They said: “We will continue to wage the legal battle against Section 377 as there is an urgent and compelling case for the law to go. We will pursue all legal options, including curative petitions, to again assert that the court has made an egregious error in this case by denying the right to equality and dignity to a section of the population.” Furthermore, they argue that the verdict was contrary to well-settled legal principles of the constitution, and that proscribing certain sexual acts between consenting adults in private demeaned and impaired the dignity of all individuals under Article 21, irrespective of sexual orientation.
Organizations such as Naz Foundation and Voices Against 377, and individuals such as film director Shyam Benegal and parents of LGBT persons had, along with the government, filed review petitions in the court, desperately asking the court to reconsider the December verdict.
Do you think the difference in the Indian culture has an effect on the Supreme Court’s decision? Do you think it is constitutional to sentence an individual to 10 years in prison because they engaged in sexual intercourse with the same sex? If this case were in the United States, what violations would be alleged?
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I would think, undoubtedly, that the Indian culture indeed plays a very strong role in the Supreme Court’s decision. This is certainly a hot-button issue internationally, and one which unfortunately tends to be heavily influenced by personal opinion rather than by black letter law. As for the preposterously long potential prison sentence, let me say that, it is clearly unconscionable, unethical, and unjustified… but is it unconstitutional? As everybody’s favorite SCOTUS Justice (Scalia) likes to say, “A lot of stuff that’s stupid is not unconstitutional.” I think whether or not this prison sentence is unconstitutional depends largely on the protections the Indian constitution provides. In the US, there would be a strong argument that – if this Section 377 was not already unconstitutional in and of itself – it violates the Eighth Amendment against cruel and unusual punishment. Assuming that the Indian constitution has a similar provision, then the proposed sentences seems like a clear violation. Finally, as briefly mentioned above, I think that Article 377 would be quickly and swiftly ruled unconstitutional in the United States. The Supreme Court has already spoken to this issue, in Lawrence v. Texas, when they held that sexual relationships are intimate and private rights.