How 'Unconvicted Felons' Stood in the Supreme Court and Watched Section 377 Fall

The 158-year-old colonial law criminalised India’s LGBTQ community. After a nearly three decade struggle, it was finally struck down.

New Delhi: Chief Justice Dipak Misra was feeling romantic on Thursday.

“I am what I am, so take me as I am,” he declared, reciting 19th century poetry by Goethe to a packed Supreme Court.

A beat later, he followed it up with a recitation from Shakespeare’s ‘Romeo and Juliet’: “What‘s in a name? That which we call a rose by any other name would smell as sweet.”

Eased on by the persuasiveness of poetry, India’s Supreme Court made history on Thursday, September 6, 2018: a bench of five judges unanimously read down Section 377 of the Indian Penal Code which criminalised “unnatural sex.” This law has been unjustly used to repress, oppress and stigmatise India’s sexual minorities, in the lesbian, gay, bisexual, transgender and larger queer community (LGBTQ+).

It took a judgment running to 495 pages  to read down 64 oppressive words of law contained in Section 377. These words are a 158-year-old British-era relic that survived 71 years in independent India as well. For nearly 30 years, various petitions have tried to challenge the law in courts and in parliament. On Thursday, it finally fell.

Misra and then the other judges of the bench, read out astounding declarations, to the packed court room. They upheld the rights of India’s LGBTQ community to equal treatment before the law, to dignity, liberty and life, to protection from discrimination, and to the entire gamut of fundamental rights. Justice Indu Malhotra, the only female judge on the bench, had the last words: “History owes an apology to the members of this community and their families.”

As judge after judge made their pronouncements, people in the court room smiled, held each other, and cried. People had brought their partners, parents and friends to witness history play out.

But that freeze-frame in the Supreme Court in 2018, was very different from the one in 2013, when the same court had refused to drop the criminality of Section 377 and refused to uphold the dignity of India’s queer community.

Member of GBTQIA+ celebrate after the Supreme Court’s verdict of decriminalising Section 377 in Mumbai. Credit: REUTERS/Francis Mascarenhas

Invisible but existent

Dial back to February 2012 and in the same court, justice G.S. Singhvi had a query.

“Do you know any person who is homosexual?” he suddenly asked the government’s counsel.

The Delhi high court had decriminalised Section 377 in 2009. This judgment was appealed in the Supreme Court and the two-judge bench of justice Singhvi and justice S.J. Mukhopadhyay, were hearing arguments afresh. Their bench ultimately restored the criminality back to Section 377 in 2013.

“I must confess my ignorance about modern society,” replied P.P. Malhotra, coquettishly. Malhotra was the Union’s additional solicitor general on the case.

Three weeks later, justice Singhvi was still wondering if homosexuals exist, how many of them might there be and how come he hadn’t seen one yet. So in March 2012, he again threw a question, this time at senior advocate Shyam Divan who was arguing for decriminalisation.

“How many homosexuals do you think there are?,” he asked Divan.

Divan replied: “Since you asked Mr Malhotra the other day… Gay people are my colleagues. They are in my inner circle. They are in my family. They are my friends. They are normal, citizens deserving of full dignity.”

On another day, during the hearings, justice Singhvi mused out loud again, that he had “never met a gay person” and that the hearings had taught him a lot.

Over days of hearings, the two male judges continued to ask questions which bordered on cheap laughs. At one discussion on the “abnormality” of homosexuality, justice Singhvi joked that he had no experience to comment. When one lawyer brought up the Kama Sutra, justice Singhvi again jibed, “We don’t mind it,” to laughter in the court.

Through the days of sniggers and contempt, there were in fact queer people in his courtroom watching him – “unconvicted felons” or “unapprehended felons” is how lawyers in court, and queer people outside court, have described the spectre of living with Section 377.

Unconvicted felons, everywhere

Many unconvicted felons – India’s LGBTQ members seeking equality before law – were in justice Singhvi’s plain sight in 2012. He just couldn’t see them. In 2012 and also in 2018, the court hearings itself had as witnesses, a number of queer identifying lawyers, journalists, petitioners, intervenors and onlookers.

Queers in the court room will attest: the flavour was palpably different this time around. But in both cases, it was an act of defiance and resistance to be remembered – when unconvicted felons were inside the court room, asking for their rights.

The term has been used popularly while describing the constant threat of prosecution that India’s LGBTQ community faces and draws some of its origin from a 1993 book by Edwin Cameron. “Criminalising people in the LGBTQ community for being LGBTQ is like criminalising a left-handed person for being left-handed. This is how Section 377 has created the phenomenon of the ‘unconvicted felon.’ It is indefensible,” says Siddharth Narrain, a lawyer who has worked on all legal challenges to Section 377, starting from the Delhi high court.

“Minuscule fraction” is how justice Singhvi and justice Mukhopadhyay finally chose to dismiss India’s LGBTQ community, when they wrote their damning judgment in 2013. The judges chose to deny a quality of life to India’s LGBTQ community, because they felt there weren’t enough of them. They wrote thus, that there was no “sound basis” to rule in favour of the LGBTQ community.

But in five years, the same court now says, that “constitutional morality” must prevail over the whimsical and transient natures of social, political and majoritarian morality. The new judgment says that the Supreme Court is here to protect all of India’s minorities, against the “tyranny of the majority.”

However there are some things the law cannot change. If there were queer people in the court room, there were also those who had only hate for queer people, even to the point of violence.

There were beads of sweat on Purushottaman Mulloli’s nose as he came out of the Chief Justice’s court room on July 12, 2018. He was shaking with rage. “How dare the judges do this? Who is behind this?” he said through gritted teeth.

Purushottaman Mulloli, an early appellant seeking the maintenance of Section 377, outside the Chief Justice’s courtroom on July 12, 2018. Credit: Anoo Bhuyan/The Wire

Mulloli represents Joint Action Council, Kannur (JACK), and has been opposing the decriminalisation of Section 377 since its early challenges. He had arrived in Delhi from Kerala and stood in the front of court every day of the hearings, wearing the same stained white kurta. He was furious to see that the mood in court had changed – the judges were no longer sniggering at the LGBTQ community in court.

“You have been hearing about lynch mobs, right? There will be one. 1.25 lakh people will come forward,” he said. “Don’t quote me on this until this case is over.”

Equality as the gateway to civil rights

“How strongly must you love to withstand the terrible wrongs of Suresh Kumar Koushal.”

That was Menaka Guruswamy, advocate for the lead petitioner – Navtej Singh Johar and his partner Sunil Mehra – in this new challenge to Section 377. ‘Suresh Kumar Koushal’ refers to the 2013 judgment of the Supreme Court which restored criminality to Section 377.

Guruswamy referred to her clients, and then paced her words heavily, enunciating it for the complete clarity of everyone involved: “What must it take? How strongly must you love to survive 26 years in the shadows of being unconvicted felons that 377 made them?”

“This is not just sexual acts. This is love. And it must be constitutionally recognised.”

Lawyer Menaka Guruswamy. Credit: YouTube

Uplifting the arguments from being about body parts and what body parts can do with each other, to one about love, life, dignity, liberty and equality was urgent. Because, to reduce decades of struggle to arguments only for the right to engage in sexual acts, would squander all its possibilities for the future – the future, could be the full range of civil rights.

The judgment in Navtej Singh Johar and others versus the Union of India is now its gateway.

“Total ecstasy,” says Anjali Gopalan on the verdict. Gopalan, the Naz Foundation and Lawyers Collective have fought this case for 17 years, much before the new clutch of petitions approached the court for similar reliefs. “It is not just a decision, but has left the door open for people to approach the courts on their civil rights.”

Anjali Gopalan at a pride parade. Credit: Athlour CC BY-SA 3.0.

The judgment really has. Apart from the NALSA judgment in 2014 which already said one’s gender identity is an essential factor in accessing civil rights, this judgment has gone beyond simply decriminalising consensual sexual acts between adults.

The judges have reiterated in their respective orders, the basic touchstones required for a larger challenge: “Members of the LGBT community are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution.” The judges have also repeatedly stressed that India’s LGBTQ community has the “right not to be subjected to discriminatory behavior.”

Justice is not a destination one permanently arrives at after the due-process of law. It will be contested daily and as many are saying, the fight to preserve this justice has only just begun.

Injustice picks its victims unequally even within the LGBTQ community, picking on those from the most vulnerable genders, castes and classes first. Equality, which this judgment confers, will also thus have to come in more systematic dimensions. This is what is now ahead, not just for the LGBTQ community, but for the country.

But for just this moment, there is brief respite. India has unconvicted some of its felons.