02/05/2016 10:08 pm ET Updated Feb 05, 2017

Correcting Legalized Bias: India and its Struggle to Decriminalize Homosexuality

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The last chapter of the legal campaign to decriminalize homosexuality is unfolding in the Indian Supreme Court. It is considering a "curative petition" in which lawyers are making the last-ditch arguments in favor of decriminalization. Created in 2002, the curative petition in the Indian legal system provides an aggrieved party one last opportunity to appeal a final ruling after all else has failed.

This is the culmination of a more than decade-long battle to overturn the antisodomy law, first introduced by the British colonial state in 1860. The campaign's breakthrough came in 2009 when the Delhi High Court furnished a historic decision in favor of decriminalization. However, through another curious feature of the Indian legal system, this decision was subsequently appealed in the Supreme Court by a ragtag group that was not even part of the original proceedings. Going against trends toward greater social acceptance within India and worldwide, two presiding Supreme Court justices unexpectedly overturned the high court judgment in 2013, re-criminalizing homosexuality in a nation that has the second largest population in the world.

Despite this setback, the Supreme Court showed a glimmer of hope by agreeing to revisit its 2013 ruling through the curative petition - the vast majority of which are readily dismissed. Curative petitions have to adhere to narrowly defined parameters. As legal expert Alok Prasanna Kumar notes, they can be filed due to failure of justice (the petitioner was not heard by the court) or the undisclosed biases of the presiding judges that adversely affect the outcome. In this case, three senior apex court judges announced that the curative petition would be considered since the matter is of constitutional importance.

Even with this encouraging development, the question of legal bias is entirely pertinent to the Supreme Court's 2013 ruling upholding the criminalization of homosexuality. The issue here is the extent to which judges, who are expected to be impartial arbiters, reflect pervasive cultural prejudices. These biases were clearly evident when the justices opined in the 2013 verdict that using the mouth as a sexual orifice goes against the order of nature. Also, when the unofficial transcripts (the Indian legal system does not release official transcripts) described the decidedly odd nature of the questions related to homosexuality asked by the justices during the hearings, they revealed the difficulties of two justices delivering a fair and objective ruling in a country with the second largest population in the world.

To be sure, not all justices share these cultural prejudices, as the Delhi High Court ruling attests. Indeed, as my own extensive research on this issue among state officials indicates, they hold a range of opinions, including the view that while they may not know much about homosexuality, they believe that gay and lesbian people should have the right to make a personal choice about their sexuality.

Legal bias also relates to institutional inconsistency. Mere months after the Supreme Court delivered its shocking verdict on re-criminalizing homosexuality in 2013, it furnished a path-breaking ruling affecting transgender persons and others who do not subscribe to gender binaries (woman and man). This judgment sought to correct society's moral failure to embrace different gender identities and expressions. Momentous as this decision was, it raises the question of how transgender persons or those who identify as third gender could be legally protected while same-sex sexual activity is still criminalized. For example, a transgender woman would be vulnerable under the antisodomy law for being sexually intimate with someone who also happens to have a male body. Ensuring social justice on account of gender identity is not going to be enough as long as homosexuality itself is outlawed.

In the vast majority of cases, curative petitions are quickly dismissed. Surely, it is an encouraging sign that on February 2, 2016 the senior justices also announced that the curative petition would be heard by a full bench of five justices, led by the Chief Justice of the Supreme Court. While the legal process is expected to take months, there is every reason to be cautiously hopeful about the outcome. It is imperative to underscore that this is the apex court's last opportunity to live up to its promise as the font of justice. Difficult and complicated as it may be for the court to reverse its 2013 ruling, it is in a position to rewrite the history of homosexuality in India.