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“To undo justice, and to seek
To quash the rights that guard the weak –
To sneer at love, and wrench apart
The bonds of body, mind and heart
With specious reason and no rhyme:
This is the true unnatural crime.”
– Vikram Seth (Excerpt from poem ‘Through Love’s Great Power’)
What is more unnatural – to love someone belonging to the same gender or labelling the same sex couple as criminals? That was the question acclaimed author Vikram Seth had for the Supreme Court in January 2014. In December 2013, the Court had ‘squandered away’ an opportunity to set things straight as it put the onus on the Parliament to take a call on whether a 484-year-old law, section 377 of the Indian Penal Code (IPC), should be done away with.
Four years later, 20 current and ex-students of the Indian Institutes of Technology (IIT) have approached the Supreme Court asking the same question as they challenge the constitutional validity of Section 377.
‘Law Has Relegated Us to Second-Class Citizenship’
The petitioners claim that section 377 has violated their fundamental rights, thus preventing them from living a life of dignity. Among the 20 petitioners, two are females and one trans woman, the youngest petitioner is 19 years old while the others are in their thirties.
Section 377 legitimises the stigma associated with sexual orientation and its expression – something which is essential, fundamental, intrinsic and innate to an individual. The existence of this law which relegates some of us to second-class citizenship has subjected many of us to mental trauma and illnesses such as clinical depression and anxiety to name a few.Press release by ‘Pravritti’ on behalf of 20 IITians
Pravritti is a pan-India informal group of IITians belonging to the LGBTQ community, that came together in 2012, whose members have now approached the court with the demand that section 377 should be scrapped.
I think that LGBTQ citizens cannot lead lives of dignity, they cannot lead happy and fulfilling lives if that law exists in our Constitution and is used to discriminate against them, says Udai Bhardwaj who graduated from IIT Kharagpur in 2017. According to Udai, it is the law that needs to change first, only then the society’s attitude will change towards the LGBTQ community.
I shouldn’t be afraid of holding hands in public which is something so insignificant that nobody should have to think about it. I should have the chance to have a meaningful relationship without worrying about policemen seeing me or finding about my relationship.Udai Bhardwaj (Ex-student, IIT Kharagpur)
For Debottam Saha, who is pursuing PhD from IIT Delhi, approaching the court is also about ‘coming out of the closet’ and expressing the fact that ‘we are not a minuscule fraction’.
A legal sanction would, at least, free us from the label of ‘criminals’ and secondly, we can also approach our families or even close acquaintances.Debottam Saha (PhD student, IIT Delhi)
Long-drawn Legal Struggle
According to Section 377, ‘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 a term which may extend to ten years, and shall be liable to fine.’
In 2009, the Delhi High Court had struck down provisions of section 377 that criminalized consensual sexual acts of adults in private. In Naz Foundation versus Government of NCT of Delhi, the Delhi High Court had stated:
“Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination. This was the ‘spirit behind the Resolution’ of which Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is anti-thesis of equality and that it is the recognition of equality which will foster the dignity of every individual.”
However, in December 2013, the Supreme Court set aside the verdict by the Delhi High Court, throwing the ball in the court of legislature that could repeal or amend the law.
On 20 April 2018, hotelier Keshav Suri, and the Managing Director of the Lalit Suri Hospitality group approached the Supreme Court requesting that section 377 should be scrapped. Earlier this year, in January, the Supreme Court agreed to revisit its 2013 verdict, following a petition filed by restaurateurs Ritu Dalmia and Ayesha Kapur, bharatnatyam dancer Navtej Johar, historian Aman Nath and journalist Sunil Mehra.
IITians Demand Equality
On 17 May, following the plea by IITians, the top court has issued a notice to the Centre.
The IIT students and alumni who have filed this Writ are using Article 32 of the Constitution to tell their stories so that the constitutional promises of dignity, equality and liberty may be realised for them. Ambedkar called Article 32 the heart and soul of the Constitution. These Petitioners are amongst the best and brightest minds of the country. They now ask to be recognised as equal citizens.Arundhati Katju (Lawyer representing the 20 IITians)
For youngsters like Udai and Tanveen, it is the threat of prosecution that forces them to live in fear. Legal sanction will be the first step that will go a long way in changing the attitude of the society.
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