Twist in Section 377 saga!

My Story, Feb '16

Vivek Divan on his mood swings as the Honourable Supreme Court of India decided not to reject the curative petitions against its December 2013 verdict on Section 377, Indian Penal Code and referred them to a Constitution Bench for possible reconsideration

At a gathering of queer people and allies at the Academy of Fine Arts,
Kolkata on February 1, 2016 evening. Photo credit: Pawan Dhall

I’ve become a poor predictor of these things. As one of the core team at Lawyers Collective who strategized and filed the Naz Foundation (India) Trust’s petition against Section 377 in 2001, I was full of optimism about its outcome then though I knew it would take a while. I got more pessimistic as time passed and the case went through the quirks of the justice system. But lo and behold! We got a great bench of judges in the Delhi High Court in 2008, and won. When the judgment was appealed to the Supreme Court of India, I was convinced we couldn’t lose given the great praise that was heaped on the Delhi High Court judgment by law schools and legal experts in India and around the world. And, even after witnessing the way in which the Supreme Court heard the case in 2012 (gingerly, with evident discomfort) I couldn’t imagine we would lose; the Delhi High Court judgment might be watered down, but we would remain decriminalised, I thought. After all, apart from the celebrated High Court ruling we also had a very strong legal case, a government that had no objection to the decision, and a bunch of opponents who had religious bigotry, and arguments based on hypocritical morality and bogus ‘data’ on their side, but little in terms of legal arguments. And, of course, we lost.

So, for February 2, 2016, when the curative petitions (Naz’s and several others in support) were listed before the three senior-most judges of the Supreme Court, I (as, I imagine, many other queer people) rode the rollercoaster of emotion in the prior 72 hours, with an underlying trepidation that this was it – the last throw of the dice for a generation, with slim, if any chance of success. My father, a lawyer thought otherwise – his reading was that the case was listed before the court purposefully, and that the Chief Justice of India wanted to give it due consideration, not reject it. My mother was characteristically and intuitively gung ho, and even came to court at the time of the hearing.

The courtroom was packed as expected – with a multitude of lawyers appearing on the queer community’s behalf, several queer activist folks craning for a view from the nether reaches of Court Room No. 1, and some journos. The judges sat a few minutes after the allotted time of 3 pm, and from the get-go it was clear that they knew what was before them. Their body language was generally positive – they were proactive in their enquiry, not squirmy in their seats, calm, balanced and precise in their tone, and fully engaged in their whispered tripartite discussions on the bench. I heard an advocate for one of the supporting interventions to Naz’s petition inform the court of the millions affected by the Supreme Court’s decision of December 11, 2013, which had condemned this and a future generation “to indignity and stigma”.

Extract from story titled Five-judge Constitution Bench to Take a Call on
Section 377, The Hindu, New Delhi, February 3, 2016 

All of this gave me a positive vibe quite immediately, and I even looked sidelong at my mother a few rows to my side, raised my eyebrows and mouthed, “This is looking surprisingly good!” She smiled, getting a good sense too. I think I even mumbled aloud with some incredulity when I heard the Chief Justice ask if anyone was opposed to the case and that the court was inclined to place it before a Constitution (five-judge) Bench. And when he began dictating his order, one couldn’t pick up much other than words to the effect of “…matter of constitutional importance…”, “to be placed before five judges…”

The overwhelming sense was one of relief – that we were alive to fight another day. And, some disbelief that we’d actually gotten through. And so, I was pinching myself while also letting out a moderated scream outside the courtroom, and hugging lawyers, fellow queers, and my mother who said “I thought this would happen, buddy!”

But, for the preceding day or so I’d been preparing for closure after 16 years of intimate attachment to this case (and many more of indignation at the existence of Section 377), and thinking that with loss would come clarity and certainty, not further suspense about how things might go at a future date. There was a peace with the loss that I thought I was coming to terms with. Needless to say, in this game of roulette the lease of life that the Supreme Court gave us was much preferred!

Vivek Divan is qualified in the law and queerness. He has been involved in HIV- and queer-related activism for almost two decades, including critical community mobilization around the Naz Foundation (India) Trust petition against Section 377 as Coordinator of Lawyers Collective – HIV/AIDS Unit, 2000-07.