Today, the Supreme Court refused to consider review petitions filed by eight parties including the Union of India, parents of LGBTQ persons, Voices Against 377, teachers, mental health professionals, Shyam Benegal and the Naz Foundation. This disappointing decision is a set back to the rights of LGBTQ persons and, indeed, to the fundamental rights of all Indians.
This decision is particularly egregious as the Court’s decision in Koushal was replete with errors apparent on the face of the record. The Court disregarded arguments made by the parties, did not consider key findings of the Delhi High Court judgment, and was seemingly blind to the voluminous material on record that incontrovertibly established rape, torture, discrimination, and harassment of LGBTQ persons as a direct and inevitable consequence of Section 377. Today’s decision represents an abdication by the judiciary to protect the spirit of the constitution. It is a failure to assert that fundamental rights hold for all persons however “miniscule” their numbers are perceived to be.
The LGBTQ community, however, is not disheartened. Regardless of the decision of the Court, our activism asserting the right to live without fear and discrimination, and indeed to live with pride, will remain undimmed. If anything, we are strengthened and heartened by the wide range of support we have seen and felt. The media, mainstream political parties, ordinary persons, families of LGBTQ persons, mental health professionals, teachers, academics, artists have all stood with us in favour of the constitutional guarantee of dignity to the LGBTQ community. They have shown us that there is nothing ‘miniscule’ about the concerns of the LGBTQ community and that the fight against discrimination is everyone’s fight.
Going forward, we will build on the gains of this unprecedented assertion in favour of the rights of LGBTQ persons. We will continue to wage the legal battle against Section 377 as there is an urgent and compelling case for the law to go. We will pursue all legal options, including curative petitions, to again assert that the Court has made an egregious error in this case by denying the right to equality and dignity to a section of the population. We will mobilize as a community to ensure that there is no legal or extra-legal violence or discrimination faced by LGBTQ citizens, we will expand the networks of support spaces across the country. We will continue to protest and advocate with all institutions and persons to remove any discrimination on the basis of sexual or gender identity.
We see the dismissal by the Supreme Court as nothing but a temporary reversal. The history of struggle against anti-sodomy laws worldwide teaches us that, sooner or later, unjust laws are defeated even as the battles may be long. As the campaign started on 11.12.13 states: ‘Section 377: There is No Going Back’. Regardless of the Court’s ruling, we walk with pride. As the Delhi High Court judgment reminded us, our rights are inalienably ours – they Court did not confer them on us, it cannot take them away.
Tamil translation of the above is here.
More on this, written prior to the news from Supreme Court
The Supreme Court dismissal statement is here.