Supreme Court verdict upholding Section 377 of the IPC
Black Day for Human Rights in India
Human rights activists across the country were deeply disappointed with the decision of the Supreme Court in Suresh Kumar Kaushal v. Naz Foundation to overturn the historic Delhi High Court judgement of 2009, which decriminalised homosexuality in India. CREA believes that the decision to set aside that historic and progressive judgement is an unconscionable blow to people’s fundamental rights to equality and freedom from discrimination, violence, and harassment. This is a huge setback not just for the LGBT movement in this country and elsewhere, but also for human rights everywhere.
On 11 December 2013, the Supreme Court judgement upheld Section 377 of the Indian Penal Code, a colonial law that makes criminals out of thousands of consenting adults in India. This judgement ignores the spirit of inclusiveness, which is at the heart of the Indian Constitution, as envisioned by the founders of this plural and diverse democracy. It tragically abandons the principle of constitutional morality ─ the principle that subjective moralities or majority views cannot be allowed to marginalise and exclude minority communities. In the long history of the Supreme Court’s judgements that affirm human rights, this judgement marks a low point where the fundamental rights of citizens have been contracted, and stands together with the decisions upholding the Emergency and Mathura rape case.
On 28 January 2014, the Supreme Court of India considered the review petitions submitted against the Section 377 verdict, and rejected all of them. The eight review petitions were filed by Union of India, Parents of LGBT persons, Naz Foundation, Voices Against 377, Shyam Benegal (director and screenwriter), Nivedita Menon and other academics, Shekhar Seshadri and other mental health professionals, Ratna Kapur and other law academics.
Unjust as these decisions are, our collective struggle and activism for all people’s basic human rights will continue, and is newly re-energised. The wheels of history are in motion, both in India and on the larger global stage, and the movement for LGBT rights and equality will move forward. Fundamental human rights are not conferred by any court, as the Delhi High Court stated in its judgement in 2009, they are merely confirmed by them. Despite the Supreme Court judgements, it is CREA’s unwavering belief that “the arc of history is long, but it bends towards justice”.