THE CENTRE AND ARTICLE 377
Last week, the central government was primed to unveil its position on LGBTQ rights before the Supreme Court of India. Their statement was anticipated with bated breath: in recent years, there has been a strong movement asking political parties to extend their support to the LGBTQ community. A few parties have responded positively. The Congress, the JD(S), the National Conference, AAP and the CPI(M) have made unequivocal public statements in favour of the community, with the last two placing a demand for decriminalisation in their manifestos. The NDA government, however, has been silent. On July 11, it broke its silence—which at first glance seems like more silence. Only on further perusal does it become clear the party does have a position on the issue. It is certainly not one that imagines LGBTQ persons as equal citizens.
On July 11, Tushar Mehta, the Additional Solicitor General, informed the fivejudge constitution bench hearing the Section 377 case that the Centre would defer to the court’s wisdom. This is not the equivalent of the government supporting decriminalisation. Support would have entailed submitting an affidavit recognising the many harms perpetrated by the section, and acknowledging the equal citizenship of the millions of individuals who constitute the LGBTQ community. In 2012, it is precisely what the UPA government did.
Then Attorney General, the late Goolam Vahanvati, stated in open court that the government had learnt from the Delhi High Court’s Naz Foundation decision and sought to support the reading down of Section 377. Vahanvati went above and beyond this mere statement to actively make submissions about how the law was a form of sexual imperialism fostered by colonial rule and that the introduction of Section 377 was not a reflection of otherwise more tolerant Indian values and traditions. Later, when the apex court delivered its verdict in Suresh Kumar Koushal v. Union of India, the central government filed a review petition. It did not take measures to strike down the law once the review petition failed, but at the very least they took a clear, cogently articulated position.
In contrast, the current ASG didn’t stop at just stating there was no government position. Time and again, he told the court he held a few apprehensions. But as it turned out, these weren’t apprehensions that the mistakes of S.K. Koushal might be repeated. Instead, all the government wanted to do was to strike a note of caution about the level of relief the court might grant, the potential civil liberties overload we might be confronted with, or the possibility of being beset by the abominations of incest and bestiality. The concern with the apparent legalisation of bestiality is particularly bizarre: at no point has any petitioner made this argument, and the ASG’s unnecessary “concerns” only served to distract the court from the petitioners’ arguments.
Indeed, the ASG constantly interrupted the petitioners as they made their submissions, either complaining that the reliefs they were asking for went beyond the scope of the petition, or questioning the relevance of their constitutional arguments. He displayed a particularly pointed apprehension around the arguments relating to the right of LGBTQ persons to form associations, leading the court to reprimand him multiple times.
Judgments might be declared by courts, but they need active state cooperation to be implemented. In this case, it’ll be one thing for the court to declare that Section 377 does not apply to consenting adults (and thus, decriminalise LGBTQ persons), it’ll be another for state authorities to internalise this decision and stop the persecution of the community, and yet another for the state to actually make an amendment to 377. At this point, it appears that even if the apex court delivers the empowering decision the community deserves, it’ll be undercut by the government’s apathy. More than apathy: the government was not silent in the Supreme Court; it spoke, and its choice of words betray nothing but contempt for the queer community.
Danish Sheikh is an Assistant Professor at Jindal Global Law School