Anand Grover: Neither Section 377 or 375 cover lesbians or married women

While hailing the Supreme Court verdict on Section 377, advocate Anand Grover, who was representing petitioner Naz Foundation India Trust in the case, says that Section 377 continues to criminalise intimate partner sexual violence between men, but there is no protection against assault and violence for women who have same sex partners.

“Neither Section 377 or Section 375 cover lesbian women or married women. According to the law, rapists can only be men and sexual violence can only be perpetuated by men. So, the law says there can be intimate partner violence only between man and woman, not woman and woman. But if a woman is married, she can also never be a victim [if raped by her husband]. The law has to be gender neutral, but it isn’t at the moment,” said Grover, during a conversation at the Indian Women’s Press Corps in New Delhi.

“It will only be a matter of time before questions are raised,” emphasised Grover.

“Section 377 establishes the equality of every single citizen of the country irrespective of their gender or sexual orientation. It is Constitutional morality over and above majoritarian morality. The NALSA judgement, which came in 2013, establishes gender equality,” explained LGBT activist Noor Enayat.

All of this gives reason to question Section 375. “Everyone is equal. But, the state seems to think that women have no sexual agency, more so married women and transgenders. The state’s job is to protect life and liberty of each individual. Irrespective of my orientation, I have the right to enjoy consensual sex because it is my right to lead a fulfilling life. Since partnerships have been considered equal and the idea of consent has been established, it only goes on to say that sooner than later petitions will be filed on Section 375,” pointed out Enayat. Grover called attention to the fact that there is no clarity for transgenders in the IPC.

“The Constitution does not have a majoritarian pulse. It has the duty to deliver justice to every individual. Every state, of course, wants to take short-cuts and not hold deliberations, but the Supreme Court, in its Section 377 judgement, has upheld Constitutional morality. However, the Supreme Court has not had much success with inclusivity. The court should step in if even a single person’s interest is being violated and not protected by the Constitution. They cannot be bracketed under ‘minuscule population,” said Grover.

Enayat said change would not be possible overnight, however, the judgement will initiate conversations on the issue and also pave the way for civil liberties.

Grover, who began with working for people with HIV in the 1980s, says that with the Section 377 judgement there will be more people coming forward and identifying themselves as gays and lesbians. “This ruling also opens doors for corollary laws. Sooner than later, there will be petitions on marriages, adoption, inheritance and hiring policies. No law can set right discrimination, for that a mindset has to be changed,” added Grover.