Supreme Court Judgment against Section 377

The Supreme Court’s judgment on Section 377 is an important reminder of the task that lies ahead for the queer movement. How would homonormativity take shape in this nation, as another form of upper-caste male hegemony? Now that lesbian, gay, bisexual and transgender, and queer persons are formally being called into full-fledged sexual citizenship, how does the queer movement articulate an intersectional politics of hope that insists on forms of emancipation that do not exclude those who are on the wrong side of caste, religion and ethnicity?

On 11 December 2013, the Supreme Court had overruled the Delhi High Court’s judgment in Naz Foundation v Government of NCT of Delhi,and had reinstated Section 377 of the Indian Penal Code (IPC). The arguments disfavouring the decriminalisation of “carnal intercourse, against the order of nature” in Suresh Kumar Koushal v NAZ Foundation and Others were exceedingly facile. The notion of presumption of constitutionality of a colonial law that was put in place due to misplaced sexual anxieties of the coloniser seemed far-fetched more than six decades after independence. The 2013 judgment, by insisting that Section 377 persecuted sexual acts alone and not sexual identities refused to acknowledge the adverse effects of the law on the lives of lesbian, gay, bisexual and transgender, and queer (LGBTQ) persons. Even as the judges recognised that the “order of nature” is subject to historical change, they held on to an arbitrary distinction between carnal intercourse in the ordinary course of nature and that which goes against it. Most striking was the claim that since non-heterosexuals constitute a minuscule fraction, Section 377 does not challenge the provisions of Articles 14 (right to equality), 15 (right against discrimination) and 21 (right to life). Such a claim made a mockery of the most basic democratic safeguards available to vulnerable groups.

The Navtej Singh Johar v Union of India ruling declares that Section 377 violates Articles 14, 15 and 21 insofar as it penalises any consensual sexual relationship between two adults in private, be it homosexual, heterosexual, lesbian or transgender persons. Provisions of Section 377 remain applicable in cases of non-consensual carnal intercourse with adults, all acts of carnal intercourse with minors, and acts of bestiality. There is much to appreciate about the comprehensive 493-page Supreme Court judgment against Section 377 delivered on 6 September 2018. In many ways, it echoes the historic high court judgment of July 2009 which had decriminalised consensual sex among homosexual adults in private, but it also appears to promise more.