1. An analysis of the
Supreme Court verdict on
Sec 377
Nikhil Saraf

2. "This is our lives. There is no question of giving this up. I was asked by a reporter today,
"isn't it daunting to fight the Supreme Court?” Do you know what's daunting, it is that
moment when you are 15 and you are terrified of who you are. If we have survived that, the
Supreme Court does not know what fear looks like. In the long course of human history,
dignity only moves forward, and it will move forward in this case." (Bhan, 2013)
- Gautam Bhan, A lawyer and an activist
The Indian Supreme Court on the 11th of December 2013 set aside the Delhi High court
order and upheld the legality of Sec 377 of the India Penal Code (IPC) leading to a an
uproar by the Indian community at large not only nationally but globally. However, the above
quote perfectly summarises what we as individuals often fail to realize amidst the hullabaloo,
making it one of the most relevant and hard hitting truths to come out of the judgement.
Section 377 was imposed and written by the British in 1860 and maintained that there is
distinction between natural and non-natural sexual acts and the section criminalises the latter.
(Purewal, 2013) Now, the Delhi High Court on 2nd
July 2009 in responding to a petition,
repealed Sec 377 of IPC on the grounds that “discrimination on sexual orientation is not
permitted under Article 15” and “that it violates Articles 21 [Right to Protection of Life and
Personal Liberty]”. (Srivastava, 2013) While the Supreme Court in its ruling maintained that
the Section in no way violated article 14, 15 and 21 of the constitution (Menon, 2013)
leading to the conclusion and the cause of the uproar that the Supreme Court ruling had in
effect criminalised gay sex.
Welcome to the 21st
century where wordplay is king and most of the meaning is lost in
translation. In the two articles selected, one is an interview published in the New York Times

3. (Vats, 2013) of the acclaimed gay activist and petitioner Gautam Bhan, taken right after the
judgement and reflects his views on the matter. The article is particularly moving as we get a
firsthand account of the plight of the community and its stand rather than a superfluous public
outrage. Given this, the other article taken to analyse the issue is one authored by Shinder
Purewal and published in Straight.com (Purewal, 2013), a Vancouver based news source
which talks in favour of the Supreme Court verdict. Again, the piece doctored is extremely
significant as it clarifies how the Supreme Court is in no way responsible and should not be
blamed for the ruling as it merely says that “The section does not suffer from any
constitutional infirmity”, (Purewal, 2013) providing no decision or an opinion on the issue of
homosexuality.
Having been an active witness to the unfurling of this epic court battle through the sidelines
of social media, I as member of the society don’t carry any sort of prejudice against a
particular community and maintain that each individual has the right to choose for himself. I
strongly believe that the judgement and the Section 377 itself has been misconstrued and
misinterpreted as it was aimed at the society at large and not towards a particular set of
individuals; however the whole situation does open up a larger debate about the acceptance
and fate of homosexuals in the country and that is the debate I’d like to engage in.
The entire event can be analysed upon the basis of certain theories and frameworks which
equip us with lenses to understand what the actions mean and what implications they have on
the individual, the society and mankind at large. Some of the lenses used to dissect the issue
at hand and its consequent analysis have been discussed hereafter.
“To know what you prefer instead of humbly saying Amen to what the world tells you you
ought to prefer, is to have kept your soul alive.” ― Robert Louis Stevenson, An Inland
Voyage

4. Individualism can be defined to be the stance taken by an individual that highlights his
moral worth, is not affected by any social group or state and opposes external reference upon
one’s interest. As the individual is the fabric of any society or group, it is imperative to take
into account his or her views first and then only move forth.
When viewed through this, we can say that each individual has the right to choose who it
interacts with, what community it belongs to and more importantly how it identifies itself.
These sentiments are echoed in the statements of Gautam Bhan too when he says, “... no
matter what the personal morality of Indian citizens around sexuality, they also have a
constitutional morality.” (Vats, 2013) Thus, in effect the constitution by empowering people
with fundamental rights acknowledges this thought. However, the conflict arises when the
same constitution contains a section that views gay sex as unnatural. Though what constitutes
as natural and unnatural is an entirely different debate altogether because if we go by the law
, it is impossible to miss the notions of patriarchy so deeply entrenched within the system
which deems only the “penile-vaginal” act as natural. (Purewal, 2013)
Not yet moving on from the individual, the analysis remains incomplete if we don’t talk of
the ideas provoked by feminism, majorly that of equality; especially when talking of the
fundamental rights of the individual. The first one that comes to mind is the ‘Right to
equality’, one of the rights under scanner in view of the entire case.
“The most important thing about the previous judgment was that it unequivocally said that
queer Indians are people of equal dignity, of equal rights and of equal stature... the court
does not confer rights, it merely confirms rights. In that sense, the court did not give us our
rights and it cannot take our rights away from us.” – Gautam Bhan
While the High Court verdict in 2009 claimed that Section 377 violated the right to equality
(Article 14), the Supreme Court maintained that “...if the view expressed by the high court is

5. taken to its logical conclusion, any provision could be declared to be violative of Article 14.”
(Menon, 2013) Causing conflict between the way law was interpreted by the two identities.
Now, from the individual moving on to the second level, that is the society, we talk of the
theories that are impacted by how the community thinks and at large and its implications.
Many people believe that gender and its role is a socially created phenomenon which defines
what is wrong and what is right. This becomes extremely important with respect to the issue
at hand as gender by definition means, “Culturally and socially constructed difference
between men and women (as indicated by terms such as 'gender affairs' and 'gender politics')
that varies from place to place and time to time.” (Gender) In light of this when we view
gender as a continuum, the queer community doesn’t seem to confine to the prerequisites or
the socially and culturally set norms in India; therefore violating the very fabric of gender. It
is this acceptability and a change in this social construct that the LGBTQ community seeks at
least in the Indian context starting with wider acceptability and decriminalisation of gay sex.
The treatment met to LGBTQ community brings forth to mind one of the most subtle yet
cruel theories there is, the Muted Group Theory which talks about the communication
patterns of non dominant cultural groups, specially they way they are silenced. A prominent
example that comes to mind is that of Shuvajit, a part of the community who stresses on the
way offices have become nightmares for queers. He states, “For example, who do you
complain to if you feel humiliated by the words and action of a colleague? In fact, wouldn't
you think twice before complaining when most of your other colleagues don't find anything
offensive in what was just done/said?” (Shuvajit, 2013) But Bhan says that community “is not
silent, closeted or afraid anymore”. He maintains that it might have been so ten years ago but
now the dynamics have changed and such an event as the recent ruling will only give the
community more voice.

6. Finally, talking of two theories that sum up the arguments presented and put to rest the
reasons for the ongoing debate are the Standpoint Theory which takes into account the stand
we take and how that effects the way we see the world and the Cognitive Dissonance
Theory that says conflicting cognitions or thoughts/ideas/beliefs create mental discomfort
and we as individuals are constantly working towards reducing this dissonance.
The Supreme Court has taken the stand summed up by Shinder Purewal as that of upholding
the concept of separation of powers, checks and balances. It has not interfered with the
correctness of Section 377 but merely on the High Court judgement. While the LGBTQ
community views 377 as something that’s against the very fabric of nature, their existence
and society. Thus, both have contradictory standpoints regarding the same article and neither
can be deemed wrong. The varying standpoints also form the basis of cognitive dissonance as
the verdict is a cause of conflict for the LGBTQ community for being in direct contrast with
what they believe to be true and hence, the community protests as a whole in order to reduce
this dissonance and get the law changed.
In conclusion, I believe that both the sides are correct. The Supreme Court is right in
producing the judgement as it abided by the law while the queer community is also correct as
such a law and that too so archaic shouldn’t exist in the first place. The only solution possible
is to work our way through the judiciary and get Section 377 amended by the Parliament, the
sole body which has the power to do so. I view the entire incident in positive light as it gave
the LGBTQ community a reason to come out in the public and affirm their existence. It has
forced people to think, take a note of them and address an issue which wouldn’t have
otherwise been possible. As I think more and more about the issue, the one argument that
lingers on in my head is the one made by Bhan which said that the legal relevance of the
entire issue can be decided by the Supreme Court but the social relevance will be decided by

7. us; in retrospect that’s what the entire movement is about, to decide the social relevance of it
all.

8. References
Bhan, G. (2013, December 13). Verdict 377: Gautam Bhan – “This is our life. There is no question of
giving up.”. Retrieved from The Alternative: http://thealternative.in/inclusivity/verdict-377-
this-is-our-life-there-is-no-question-of-giving-up-gautam-bhan/
G.S.Singhvi. (2013). CIVIL APPEAL NO.10972 OF 2013. Supreme Court of India.
Gender. (n.d.). Retrieved from Business Dictionary:
http://www.businessdictionary.com/definition/gender.html#ixzz2nsJUnUdR
Menon, S. (2013, December 14). Sreelatha Menon misreading laws and judgments. Retrieved from
Business Standard: http://www.business-standard.com/article/opinion/sreelatha-menon-
misreading-laws-and-judgments-113121400686_1.html
Purewal, S. (2013, December 12). Shinder Purewal: Supreme Court of India is not to blame for ruling
on homosexual sex. Retrieved from Straight.com:
http://www.straight.com/news/548301/shinder-purewal-supreme-court-india-not-blame-
ruling-homosexual-sex
Shuvajit. (2013, December 11). SC ruling on 377: It makes office a nightmare for queers. Retrieved
from Firstpost: http://www.firstpost.com/living/sc-ruling-on-377-it-makes-office-a-
nightmare-for-queers-1281795.html
Srivastava, P. (2013, December 11). 7 Reasons the Supreme Court didnt strike down 377. Retrieved
from LegallyIndia: http://www.legallyindia.com/201312114184/Constitutional-law/7-
reasons-the-supreme-court-didnt-strike-down-377
Vats, V. (2013, December 11). A Conversation with: Lawyer and Activist Gautam Bhan. Retrieved
from International New York Times: http://india.blogs.nytimes.com/2013/12/11/a-
conversation-with-lawyer-and-activist-gautam-bhan/?_r=0

9. News Article against the motion:
Vats, V. (2013, December 11). A Conversation with: Lawyer and Activist Gautam Bhan. Retrieved
from International New York Times: http://india.blogs.nytimes.com/2013/12/11/a-
conversation-with-lawyer-and-activist-gautam-bhan/?_r=0
News article for the motion:
Purewal, S. (2013, December 12). Shinder Purewal: Supreme Court of India is not to blame for ruling
on homosexual sex. Retrieved from Straight.com:
http://www.straight.com/news/548301/shinder-purewal-supreme-court-india-not-blame-
ruling-homosexual-sex