These are laudable goals. Yet there is a crucial legislative reform that needs to take place before they can truly be realised: the amendment, if not outright repeal of Section 377 of the Indian Penal Code. On the 11th of December 2013, the Supreme Court of India effectively recriminalised homosexuality in India through its judgment in Suresh Kumar Koushal v. Naz Foundation. In upholding the constitutional validity of Section 377 which criminalises "carnal intercourse against the order of nature", the Court reinforced a view that considers the lesbian, gay, bisexual and transgender community as second class citizens. In the first of a two part essay, we call upon the AAP to proactively ensure that the LGBT community is not targeted under Section by way of a State-level amendment to the Indian Penal Code. In the second part of this article, we will discuss the actual procedure through which such an amendment might be legislated.
The re-instatement of Section 377 does not merely constitute a violation of the fundamental rights to dignity, equality and non-discrimination: it has also had violent consequences for the lived realities of LGBT individuals across the country. Since the Supreme Court’s decision, the re-instated law has been directly invoked to arrest and harass LGBT people. The period of January 2014 to October 2014 alone saw a total of 750 cases registered and 587 arrests made under the Section across the country. While we do not know exactly how many of these cases involved prosecutions of adults engaged in consensual sexual intercourse, it is clear that the overall prosecutions under the Section have dramatically increased over the last year. What is also clear is the fact that the law continues to be used as a direct and indirect tool of persecution.
A few instances will serve to highlight this pattern. On the Saturday after the release of the judgment, i.e. 14th December, 2013, two kothis were harassed and abused for spreading awareness about HIV/AIDS and safe sex. An affidavit in the subsequent review petition notes how the police told them they should stop being homosexual since the judgment had come out. Another HIV/AIDS worker in Karnataka testifies:
"We had just then received the details of the judgment at our office and I had gone to the field to check on the members of the community. To my utter shock and distress I saw two police officers beating community members. I urged the police to stop beating them and asked them why they were doing so. The officers mockingly said that I should be knowing the reason better as the news is out everywhere including the news papers, TV and everyone is talking about it. They said that they are aware of the judgment and will not tolerate seeing us in the open in spite of it.”
The Supreme Court’s judgment also resulted in a particularly vitriolic unleashing of popular prejudice: another affidavit by a gay man attests to several posters appearing in different parts of Madurai a week after the judgment calling for the death penalty for LGBT persons.
Incidents of violence and abuse continued to accumulate in the course of the succeeding weeks and months. In June 2014, a gay man who was abused and assaulted by police officers after they commented on his dressing, posted about his experience online, while expressing the fear of being prosecuted under Section 377. In September 2014, a transgender person in Ajmer was forced to perform sexual acts by the police and threatened to be booked under false charges if she refused to cooperate. Later, in November, a transgender health worker named Iliyana committed suicide after being picked up and constantly harassed by police authorities. Last month, following the murder of a hijra named Pravallika in Hyderabad, the police brutally tortured a friend of hers on the pretext of investigation. This involved stripping her in order to check if she was "really a transwoman", and forcing her to remain nude for several hours.
The cases involving the transgender community are additionally troubling given the existence of the recent NALSA v. Union of India judgment of the Supreme Court which recognised the equal fundamental rights of transgender individuals in the country. So deep rooted is the presumption of criminality under 377 that this remarkable judgment is being rendered increasingly ineffective in the face of continuing disregard for transgender rights.
In this context, we call upon AAP to make good on the promise of its manifesto, a promise that it has explicitly expressed vis-a-vis Section 377 in the past. Shortly after the Koushal judgment, the party issued a statement saying,
“The Aam Aadmi party is disappointed with the judgment of the SC upholding the Section 377 of the IPC and reversing the landmark judgment of the Delhi High Court on the subject. The SC judgment thus criminalises the personal behaviour of consenting adults. All those who are born with or choose a different sexual orientation would thus be placed at the mercy of the police. This not only violates the human rights of such individuals, but goes against the liberal values of our Constitution, and the spirit of our times.
Aam Aadami Party hopes and expects that the Supreme Court will review this judgment and that the Parliament will also step in to repeal this archaic law
This position was echoed by the AAP MP from Patiala, Mr. Dharamvira Gandhi, who raised a question on the floor of the Parliament asking about the Government's possible proposal to amend or repeal Section 377. He received a short response in the negative from Minister of State for Home, Kiren Rijiju: that the matter was sub-judice before the Supreme Court, and that a decision regarding the Section could be taken only after pronouncement of judgment by the Court.
However, since the Supreme Court will only rule on the constitutionality of the Section, there is nothing stopping a government from actively amending it.
With its overwhelming majority in the Delhi Assembly, AAP now has the legislative authority to do just that, for the National Capital Region. It has the political and constitutional authority to restore the liberal values of the Constitution and protect the human rights of individuals at least within the NCR. The Delhi elections have shown the way in terms of a new model of political engagement, one with its ear firmly to the ground. By carving out a space in the law that puts consenting adults outside the spectre of criminality, AAP will send a clear message reiterating its commitment towards the politics of change.
We call upon the party to rise up to the challenge.