While LGBT community celebrates the 5th anniversary of the historic Delhi HC judgment, the Road ahead still remains unclear

Five years have passed since the historic Delhi High Court judgment in 2009, wherein the Court decriminalized unnatural intercourse to the extent of its application to voluntary carnal intercourse between consenting adults, terming it a violation of an individual’s Fundamental Rights as enshrined under Article 14, 15 and 21 of the Constitution of India.The lesbian, gay, bisexual and transgender community still celebrates this judgment as a phase of momentary freedom that they felt-- freedom to embrace their sexuality without the fear or guilt of being treated as a criminal.The Union of India did not appeal this decision. However, 15 Special Leave Petitions were filed in the Supreme Court appealing against the said decision on behalf of mostly religious groups from all over India. 7 intervention applications (I.A.s) were also filed; out of which, 5 I.A.s were in support of the High Court judgment while 2 I.A.s were against the decision. The subsequent Supreme Court judgment in 2013 reinstated the ban on unnatural sex. This came four years after the decriminalization, which had helped to give a voice to the LGBT community in the world’s largest democracy, pushing them back into murky gallows of abjuration.Activists have since considered this Supreme Court judgment as a contradiction between the ground reality of modern India and a legal system that’s stuck in the nineteenth century Britain. Advocate Vrinda Grover deems it not only as a contradiction with the ground reality but also being against the Constitution of India. While talking to Live Law, she mused on the difference in interpretation of the Constitution being undertaken by the Supreme Court, when it accorded recognition to trans-genders using the same Constitutional provisions. She says that “these different interpretations are affecting the Fundamental rights of a very large number of people,” adding that the Fundamental Rights of the LGBT community have been jeopardized by the Supreme Court. She hopes that the judges of the Supreme Court will interpret the Constitutional provisions correctly in the pending curative petition.On 15th April this year, in the case of National Legal Services Authority (Nalsa) v. Union of India another bench of the Supreme Court, comprising of Justice Radhakrishnan and Justice A.K. Sikri granted third gender status to transgenders, asserting that that they must be guaranteed healthcare, jobs and education by both the states and centre. It said, “Discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution.”However, while discussing the parallels being drawn between the two judgments with Live Law, Justice Radhakrishnan emphasized that the National Legal Services Authority case is concerned with an altogether different issue pertaining to the constitutional and other legal rights of the transgender community and their gender identity and sexual orientation, as observed in the judgment as well. He emphasizes that both the judgments adopt different reasoning and hence, shouldn’t be compared in order to determine the validity of either.Section 377 of the Indian Penal Code criminalizes sexual activities which are “against the order of nature” and reads as follows:377. Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.It imposed a blanket ban on all penile-non-vaginal sexual acts under the rubric of “unnatural offences”. It initially covered only anal sex, but later included oral sex and penile penetration of other artificial orifices.It did serve a useful purpose in cases of sexual assault and abuse. However, criminalization of private, consensual same sex conduct under the purview of the provision has made it a weapon for abuse of the people of the community, as also a medium for justifying the social stigma that the people belonging to this community have to face every moving minute, in the world’s largest democracy.Many people in India still perceive homosexuality as a disease, even after psychology and psychiatry treat it as an expression of sexuality. The stigma and prejudice perpetuated a culture of silence around homosexuality and resulted in defiance and denunciation at home along with bias at work and public places.The law is clearly a vestige of the colonial times, criminalizing a whole range of sexual acts, since the only ingredients required to prove guilt in such cases is ''carnal intercourse with penetration'' and ''if it is against the order of...

While LGBT community celebrates the 5th anniversary of the historic Delhi HC judgment, the Road ahead still remains unclear

Apoorva Mandhani

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