LGBTQ members celebrate the Supreme Court verdict which decriminalises consensual gay sex on the bank of Upper Lake, in Bhopal (Source: PTI)

Section 377 Verdict: Arvind Datar On What Made The Landmark Judgment Possible

The Supreme Court’s last year judgment that declared privacy as a fundamental right and a 2009 ruling by the Delhi High Court that had decriminalised homosexuality were instrumental in paving the way for the apex court’s landmark ruling that legalised consensual sex between homosexuals.

That’s according to Arvind Datar, the lawyer representing one of the petitioners in the case. “We should give a lot of credit to the judgment of the Delhi high court from 2009 which had the vision and foresight to say that you can't criminalise same-sex relationships,” he told BloombergQuint in an interview. “If you look at that judgment, it took the trouble of getting into detailed medical evidence and said that there is nothing criminal about this.”

Datar said after the Supreme Court reversed the Delhi High Court’s ruling in 2013, the clock was set back. However, last year’s privacy judgment again opened an avenue for the petitioners.

Luckily for us the privacy judgment came, and they talked of personal autonomy and the right to choose partners. So with all those observations it gave impetus to our case. We then mentioned it to the Chief Justice and it was referred to five judges but with one condition that we’ll only stick to decriminalisation of gay sex in Section 377.
Arvind Datar, Advocate For One Of The Petitioners

The senior advocate said while making consensual homosexual sex legal is a landmark step towards expanding the scope of the ‘Right To Life’, there is still work to be done in sensitising the people about same-sex relationships. Making marriage and adoption legal for homosexuals will take a larger “legislative effort”, he said. That’s because the current laws are all framed around a marriage being between a man and a woman. “If you see the Hindu Marriage Act, the Special Marriage Act, the entire law is structured around marriage between people of the opposite sex. The law itself as it stands doesn't contemplate a same-sex relationship.”

Watch the full interaction here

Here’s the edited transcript of the interaction

How big is this judgement for expanding the scope of fundamental rights?

By any standards it is an important landmark judgement. As important as the privacy judgement we had a few months ago. It shows that the concept of right to life on Article 21 is ever expanding. The right to life includes the right to choose your partner. And that further now includes the right to choose a partner even if that partner is of the same sex. In that sense it is an ever expanding article.

Apart from constitutional law, the most important relief now is that from 10:30 this morning, all persons who were in a same-sex relationship won’t be criminals anymore. They cannot be prosecuted, they cannot be chargesheeted. They can be as free as you and me.

If you see 377, the punishment was 10 years to life imprisonment. That’s a huge amount just for people living in a relationship by themselves not disturbing anyone or causing any social problem. That’s a big verdict. Because of this decriminalisation and the Supreme Court verdict it also gives them equal opportunity for employment. Earlier you could be dismissed from service in some cases if you had a same sex relationship. You also had cases of professors being harassed and it became controversial. All that will be over now.

The larger thing is that the society must accept that if two people are in a same sex relationship there is nothing wrong with them. The section used the words “carnal intercourse against the order of nature”. This was a phrase used in 1860 and if you see the definition it is sexual intercourse. And if you see the debates that it was something that was completely unacceptable. It had to be condemned. Anyone who was a homosexual had to be a criminal with a demented mind according to it. Even in the early 40s and 50s in the U.S. there was a huge amount of prosecution of homosexuals. In Nazi era they were taken and shot.

There are great artists, great writers, great poets, painters who are in same sex relationships. They no longer have to live in any guilt or any kind of fear.

Explain to us your struggles to get this landmark ruling.

We should give a lot of credit to the judgement of the Delhi high court from 2009 which had the vision and foresight to say that look you can’t criminalise same sex relationships. If you look at that judgement, it took trouble of getting into detailed medical evidence and said that there is nothing criminal about this. It said you are putting this in the chapter which has rape, murder and other heinous crimes. The Delhi High Court made it very clear that there was nothing. Unfortunately in 2013, the Supreme Court reversed that judgement and put the clock back saying it is a very small percentage of the population being affected and they put it on to the Parliament to change the law.

The clock was put back. We were back to 1860.

We thought this had to change. The first petition was filed by an NGO. And for the first time, 6-7 petitioners who were gay by themselves, who were in a same sex relationship, they said that we don’t want to go by what an NGO is saying, we want to educated our own rights. They filed a petition under Article 32 saying we have a fundamental right and equal rights as a person who has a “normal” relationship. Therefore we filed a petition and said please refer it to a larger bench. It almost got dismissed but with great difficulty we were able to persuade the judges thatit requires a re-look. We used U.S. Supreme Court judgements, UK judgements, European courts and all over the Western world where it had been decriminalised. We said we cannot be completely away from mainstream society especially when we have the largest constitution and the largest democracy with a rule of law. It will be incompatible for a country with rule of law to make same sex a serious crime. Then it came before a bench with the Chief Justice but it was kept pending. Luckily for us the privacy judgement came, and they talked of personal autonomy and the right to choose partners. So with all those observations it gave impetus to the case. We then mentioned it to the Chief Justice and it was referred to five judges but with one condition that we’ll only stick to decriminalisation of Section 377. It was made very clear that the section 377, which punishes sex with minors and animals, will continue to be a crime. On this narrow point it was referred to the five judges.

Can you elaborate on what rights today’s judgement gives homosexuals?

Rights will have two parts—positive and negative. The negative part of the law has been knocked off. So it can’t be a ground to deny you employment, or promotion. It can’t be a ground to discriminate for housing or government benefits. Suppose the government has a recruitment drive, then homosexuality isn’t a ground to deny you.

As far as further rights are concerned, one thing was made very clear that we are not asking for marriage or adoption. That’s not the scope of the petition. The petition was that don’t make us liable for punishment.

As far as marriage or adoption goes it requires a much larger debate. Because if you see the Hindu Marriage Act, the Special Marriage Act, the entire law is structured around marriage between people of the opposite sex. Like the bride has to be 18 years old, the groom of 21 years of age. It talks of male, female. Prohibited relationships are between a man and 21 categories of women. So the law itself as it stands doesn’t contemplate a same sex relationship. Now you’ll have to change the law completely which is a legislative effort.

What about sensitising people about homosexuality?

I also had certain misconceptions of homosexuals. And only when I started preparing for the cases and when I went through the medical evidences we found that there is nothing bioilogically wrong with a homosexual. A human when he gets adoloscent, he starts getting attracted to the opposite sex. However, for a small percentage of 3-4 percent people, they get attracted to the same sex. After a lot of research now medical science says that this is a physiological variation. And that’s all it is. There is nothing wrong with that.

When the law was framed (in the past) this was called unnatural sex. This was called deviant behaviour, or queer. We used all sorts of pejorative labels earliers because we didn’t understand these things.

The sensitivity is important. They must be told about the medical part. There is nothing wrong at all. It is just that someone is oriented that way. That doesn’t make him a thief or a murderer.

Medical science has also found that this is not a condition that can be treated. In the past, they’ve tried giving electric shocks, chemical and psychological treatment. There is no just treatment. It is just him or her. And we should accept that.

Also read: Section 377 Verdict: History Owes An Apology To The LGBT Community, Says Supreme Court