Many readers of this blog were, last spring, anxiously awaiting the U.S. Supreme Court’s decisions on DOMA and Prop 8. A somewhat similar anxiety is being felt around India at this moment, as activists and ordinary people await a long-anticipated decision by the Supreme Court of India as to the constitutionality of Section 377 of the Indian Penal Code. Section 377 says that “[w]hoever 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 10 years, and shall be liable to fine.” An excellent analysis of the colonial and post-colonial history of Section 377 can be found here.
As some might recall, the Delhi High Court (not to be confused with the Supreme Court of India) declared much of Section 377’s enforcement unconstitutional—especially as it applied to intimate contact between consenting adults, of whatever sex—in a landmark decision issued in July 2009. A handy history of that decision can be found on the website of one of the NGOs (Lawyers Collective) which was instrumental in litigating this issue. As one can see, almost immediately after this Delhi High Court decision was issued, it was appealed by a number of interest groups and individuals to the Supreme Court. Oral arguments were in early 2012.
While the Supreme Court refused to stay the Delhi High Court’s decision while it was under appeal at the Supreme Court, there remained much uncertainty as to the precise reach of the Delhi High Court’s decision. For example, did this decision apply only to Delhi and the National Capital Region (NCR), or was it a decision that had power across India? Perhaps because of the Delhi High Court’s relatively high stature amongst High Courts in India, it was widely thought that, regardless of legal technicalities, that other states would abide by the Delhi High Court’s rather profound declarations as to the constitutional problems with Section 377's enforcement against sexually stigmatized populations. However, a recent set of arrests in the south of India has put that set of thoughts under much stress.
The Supreme Court’s decision may come down today, or early next week… or, if everyone’s reading of the tea leaves is completely wrong, maybe not until… In the meantime, for anyone who is interested, Jindal Global Law School’s law review has recently released a very interesting compendium of essays on law and sexuality, and it can be found here.