Two slim chances to overturn India’s anti-gay law

Indian Chief Justice P Sathasivam (Photo courtesy of New India Express)
Indian Chief Justice P Sathasivam (Photo courtesy of New India Express)

India currently has two long-shot chances for overturning its anti-gay colonial law, Section 377, which was reinstated by an Indian Supreme Court decision on Dec. 11, 2013.

The ruling Congress Party says it will seek to repeal the law if the party is returned to power in this month’s elections. Unfortunately, the opposition Bharatiya Janata Party (BJP, Indian People’s Party), which opposes repealing Section 377, is expected to defeat the Congress Party

The second long-shot hope is a “curative petition” to the Indian Supreme Court, seeking to reverse the Dec. 11 decision that overturned a Delhi High Court ruling in 2009 that had nullified the law.

The Firstpost online news site offers a ray of hope: Because Chief Justice P Sathasivam spoke critically about Section 377 back in 2009, there’s a chance that he will look favorably on the latest petition from the Naz Foundation Trust, which originally challenged the law in court:

Normally activists are not too hopeful about the court entertaining curative petitions but Naz has brought together many senior counsels who have never argued for curative petitions to make their case in the hope that it will make the justices pay serious attention to it.

But it’s still a long shot except an odd little nugget has surfaced that offers a peek into the Chief Justice’s mind.

Chief Justice P Sathasivam has to hear the petition and he has said nothing personally about the 11/12/13 ruling delivered by his two colleagues. Nor has he said anything after two judges rejected without comment the review petition filed by the government.

However now a transcript has surfaced of Sathasivam making comments about the Delhi High court ruling back in 2009 at the Tamil Nadu State Judicial Academy.

Speaking about transgender rights, Sathasivam had categorically and unambiguously slammed Section 377. Sathasivam said:

“From the numerous instances of abuse and violence against homosexuals and transgenders, it is evident that Section 377 has been grossly misused. It is equally obvious that a judicial move to address this concern was exigent in the face of a law enforcement framework so hostile that exploitation at the hands of the alleged protectors became a quotidian affair for sexual minorities in India.” …

“Section 377 has been extensively used by the law enforcers to harass and exploit homosexuals and transgender persons. …

“With the advent of the contemporary epoch, the movement against the repressive and oppressive nature of Section 377 grew exponentially and it was finally on 2 July, 2009 that for the first time any court in India pronounced that the oppression meted out to the transgender community and the homosexuals in the country is violative of Right to Equality under Article 14, Right against Discrimination under Article 15, and Right to Privacy and Personal Dignity under Article 21 of the Indian Constitution.

“These rights are not only constitutionally guaranteed but are also implicit in the Universal Declaration of Human Rights and should therefore; enjoy a superior position to other rights. The judgment of the Delhi High Court reflects a sense of conscience and empathy towards the sexual minorities, emotions that were hitherto unknown.

Section 377, in its criminalization of homosexual activity, was a repressive measure on the fundamental rights of the transgender community.”

Firstpost says that Sathasivam now “will have the awkward task of choosing between what is clearly his own stance on the issue and the completely contradictory one laid down by his two colleagues [who rejected an earlier appeal].”

For more information, read the full article on Firstpost: “What Chief Justice P Sathasivam thinks about Section 377.”

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Written by Colin Stewart

Colin Stewart is a 45-year journalism veteran living in Southern California. He is the president of the St. Paul’s Foundation for International Reconciliation, which supports LGBTQ+ rights advocacy journalism, Erasing 76 Crimes. Contact him at [email protected]

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