Section 377 Ruling: Pride Restored, Judiciary No More an Iron Cage

“Thanks to the Supreme Court, all Indian democrats can hold their heads up with pride today,” writes Shashi Tharoor.

(GIF: Harsh Sahani / The Quint)

Nearly seventy-one years after adopting one of the world’s most liberal constitutions, India can finally celebrate the expunging of a nasty colonial-era provision in its penal code, Section 377, which criminalised ‘whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal.’

The Supreme Court ruling on 6 September is not so much about sex as it is about freedom – the freedom of Indian citizens to enjoy the rights of equality, dignity and privacy in their personal lives, without government interference.

Glory, Glory

Section 377 made any sex apart from penile-vaginal intercourse between a man and a woman—any sex the authorities in power decide is ‘against the order of nature’—to be illegal. The Supreme Court has made it clear that the personal sexual preferences of adults is indeed as nature made them, and that it is lawful for them to be themselves.

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Obviously this is great news for the LGBTQ+ community, whose idea of what is ‘natural’ reflects their sexual orientation. But it also impacts married heterosexual couples since theoretically, an act of oral sex between a husband and a wife is also illegal. And if you’re not married to each other, of course, it’s worse. If Bill Clinton had been an Indian, he might have survived impeachment after the Monica Lewinsky affair, but he’d have ended up in jail under Section 377.

Though not widely used—fewer than a thousand arrests a year under Section 377— the law was a tool for the harassment, persecution, and blackmail of sexual minorities within India. Beyond forcing millions of gay men and women to live in fear and secrecy, Section 377 undermined HIV-prevention efforts and contributed to depression and suicides. A 2014 study by the World Bank revealed that India suffers a loss of between 0.1 per cent and 1.7 percent of GDP because of such homophobia.

Our Tryst With Section 377

The Supreme Court’s decision recognises that by giving the state the authority to control what Indian adults do, consensually, in their bedrooms, Section 377 violates the constitutional rights to dignity, privacy, and equality enshrined in Articles 14, 15, and 21, respectively. Its decision means that all consensual sex between consenting adults, irrespective of gender and sex, is now legal. This does not imply, as ill-informed critics on social media are alleging, that in the process it legitimises forced sex (or rape), sex with animals, paedophilia or pederasty.

In 2013, the Supreme Court had overturned a liberal Delhi High Court ruling which struck down Section 377 in 2009. The heavens did not fall after the High Court ruling; Indian society did not collapse. Yet bigots petitioned to reverse that decision, ultimately succeeding in turning back the clock for gay rights in India in 2013, when the Supreme Court overturned the High Court’s decision.

Like many Indians, I found the Supreme Court’s 2013 ruling antithetical to India’s commitment to pluralism and democracy, which provides for the embrace of a multitude of identities, including those based on sexual orientation. So, in December 2015, I sought to introduce a bill that would have amended Section 377 and decriminalised all consensual sex between adults, irrespective of their gender and sexuality, but a vocal section of homophobes from the ruling party defeated my attempt even to introduce my Bill in Parliament. The same thing happened when I tried again in March 2016. Sneering comments were made about my alleged personal interest in the Bill, to which I responded that one does not need to be a cow to defend the rights of animals.

Political Courage Lacking in Govt, Not in Judiciary

The BJP’s vote was incongruous on several levels, but most glaringly in its rejection of millennia of Indian practice in favour of a British colonial law (which the British themselves have outgrown). The Indian ethos toward sexual difference has historically been liberal, with neither mythology nor history revealing the persecution or prosecution of sexual heterodoxy. In fact, the Hindu epics are dotted with characters like Shikhandi in the Mahabharata, who was born female and became male; many Hindus venerate the half-man, half-woman Ardhanarishvara; and temple sculptures across India depict homosexual acts. Yet the BJP, the party of Hindu chauvinism, chooses to ignore this Hindu tradition.

In its 2013 judgment that reaffirmed Section 377, the Supreme Court said that legislators, not judges, must decide its fate. Unfortunately, the Parliament has proved itself unequal to the task; the bigotry and homophobia in the ruling party and the indifference and prejudice in much of the Opposition, had rendered the institution a temple of hypocrisy on this issue. Indeed, legislative recourse for the injustice of Section 377 would not have been available as long as the BJP is in power.

When I gave up my unsuccessful attempts to remove or amend Section 377 through legislative channels, I expressed the hope that good sense would prevail in the judiciary and that this provision would eventually be struck down by the courts.

After all, whereas change via legislation would require political courage—a quality sorely lacking in the current Indian government—the judiciary is not hampered by such considerations.

SC Restores Indian Pride

Today’s good news confirms that India’s Supreme Court has an exemplary record of interpreting statutes in a way that expands human rights in the country. The hope remains that the Supreme Court will consistently uphold an idea of India in which the law embodies constitutional values of privacy, equality, dignity, and non-discrimination for all citizens.

During the case whose verdict has come today, the words of Justice Rohinton Fali Nariman, one of the justices on the bench hearing the petitions against Section 377, were especially heartening: ‘The whole object of fundamental rights is to give the court power to strike down laws which a majoritarian government, swung by votes, will not repeal. We don’t wait for majoritarian governments to repeal laws. If a law is unconstitutional, it is the duty of the court to strike it down.’

The alternative—allowing Indian law to continue to serve as an iron cage for some of our people—would have directly undermined the freedom of identity and expression that constitutes the backbone of Indian democracy. What is more, it would have left India out of step with much of the rest of the international community, a country embarrassed before the world’s other democracies. Thanks to the Supreme Court, all Indian democrats—and not just the LGBT community – can hold their heads up with pride, and walk with dignity and freedom today.

Follow all live updates on the SC judgment here.

(Former UN Under-Secretary-General, Shashi Tharoor is a Congress MP and an author. He can be reached @ShashiTharoor. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)