LGBT Case Goes to Supreme Court in India

February 17, 2012 – This week, as many of us celebrated Valentine’s Day with our loved ones, an important legal challenge moved forward in India that will impact the rights of same-sex couples in India and beyond.  The Supreme Court of India began hearings this week on appeals from the favorable Delhi High Court verdict in the Naz Foundation case of July 2009.  That landmark case found that India’s sodomy law, section 377 of the Indian Penal Code, which was imposed under British colonial rule and then replicated in many other British colonies, violates both the Indian constitution and India’s human rights obligations.  In her powerful speech on the human rights of LGBT communities at the United Nations in Geneva in December, Secretary Clinton cited the Delhi High Court decision as global progress, quoting the court’s claim that “If there is one tenet that can be said to be an underlying theme of the Indian constitution, it is inclusiveness.”

Until recently, our lawyer friends in India thought the hearing this week would probably be a calendar check-in and that the court would delay the case until later in the year.  But the court has decided to move ahead with the hearing.  Vikram Doctor, an activist and friend of the Council, is compiling and editing information into a daily blog about the case that is detailed and technical – but also really fascinating.  You can read it here: http://orinam.net/tag/377/.   One of his opening blogs from 15 February explains where we are and how the case is likely to proceed.  It’s also important to note that in India, the Supreme Court hears a huge number of cases, often in quite a fragmented fashion, so the case may only get a few hours of consideration per week over the next few months.  Vikram explains that here:

Today was the second day that the Supreme Court heard arguments in the appeal against the Delhi High Court judgment decriminalizing same sex relations between consenting adults.

The case was first taken up on Monday and did not come up on Tuesday because some other matters, which were presumably seen as more urgent, were listed first. I think we’re realizing that this is how the case will be heard. This bench has decided they will hear it, and they confirmed that today. But they will hear it along with other matters, which on any given day might have more priority, so the 377 case will usually be heard towards the end of the day.

In other words, this case is going to be stretched over quite a bit. With so many petitioners against us, all of whom will get their hour or two in court, and then the petitioners on our side, we are looking at a lot of court hours. So the case is on, but let’s not expect anything soon, leave alone a verdict.

This may seem excruciating, and there will be plenty of uncomfortable moments in the early part when our opponents will have centre stage. We will be hearing a lot of stuff that is illogical, insulting, demeaning or just confused. But we will get our own turn, and, as one of our opponents lawyers rather aggrievedly pointed out today, all the big names are on our side. So the arguments will start sounding better in time.