In a major setback
to gay rights activists, the SC recently dismissed a petition seeking review of
Suresh Kumar Koushal judgment and held that homosexuality or unnatural sex
between two consenting adults under Section 377 of the Indian Penal Code(IPC)
is illegal and will continue to be an offence. This order quashed the hopes of
law reform.
Moreover as India
takes a step back, UK prepares to legalize the same. The Indian SC
re-criminalized gay relationships based on a colonial law that the UK has given
in the heritage. Contrary, UK government has make a announcement promising a
deadline for same sex marriages.
Lets get a bit
familiar with the Section 377 and its history. Then we will talk about its
consequences.
What does Section
377 say?
Section 377 says
that "Whoever voluntarily has carnal intercourse against the order of
nature with any man, woman or animal commits an unnatural offence and can be
punished with up to life term." This is an archaic colonial law
established in 1860 that banned sexual intercourse on the basis of its nature
as "against the nature". Moreover Section 377 is not
unconstitutional.
In 2009, Delhi high
court had ruled that Section 377 was against constitutional values and human
dignity, which clearly violates the human right of an individual. Here argument
made by SC against the HC ruling is that, the Delhi HC has relied upon the judgments
of other foreign countries which cannot be applied blindfolded for deciding the
constitutionality of Indian law.
In the landmark Naz
Foundation case, the Delhi High court stuck down the provision of criminalized
consensual adults from having homosexual intercourse. The effect of the
decision was that though homosexual intercourse was no longer illegal, Section
377 would remain in the statute books and could be used to prosecute other
unnatural sex acts. Then the PIL by Suresh Kumar Koushal, whose interest was to
protect cultural values of India society was filed. And here the SC overruled
the judgment of Delhi High Court stating the reason that "LGBT individuals
form a diminutive fraction of population and this Section 377 is not used
frequently, the decision does not hold water.
Gay rights
activists’ plea that Section 377 criminalizes a group of people and deprives
them of equal citizenship was also rejected by a Court that held on to a
textual reading that the law only criminalizes certain acts but not people or
identity.
Consequences:
Though prosecution
of consenting homosexuals was infrequent, Section 377 was used by the police to
harass and intimidate sexual minorities.
The 2.5 million LGBT community is categorized
as a high-risk group by the Department of AIDS control, as prevalence of HIV is
7 times higher in them than the others. In addition, the existence of this provision
also prevented sexual minorities from accessing sexual healthcare without
risking harassment or arrest.
The community would
also face threats and intimidation or even blackmailing.
Way Forward:
This decision of SC
is termed as 'retrograde' as it has brought back medieval prejudice and has
also curtailed liberal values and human rights.
In majority of the cases, wherever the executive had failed and did not
held constitutionally enumerated fundamental rights to life and equality, the court had stepped
in. This time it should not shy away from correcting a centuries-old law. With
this decision, it seems like judicial route has been closed to bring the law in
line. Now there are few ways forward.
One of them is the
application of curative petition, which
allows the Court to take cases even after dismissal of review petition provided
that it involves gross miscarriage of justice and violation of natural justice.
But as the track record of previous cases suggest, this route does not appear
to be optimistic. Since the review petition was dismissed without even a oral
hearing.
The another way is
making use of Parliament's prerogative to amend Section 377 in tune with the
social circumstances. Though the Union government too was in favor of High
Court's view, it had left it to the SC to decide on the penal provision. With
the upcoming elections, this legislative amendment is neither priority for
Congress part nor for BJP(Indian cultural reasons).
The last but not the
least route is to make benefit of the federal structure. As the Indian Penal
Code comes under Concurrent List of Constitution, State Legislatures may amend
a central law subject to approval of President. As this issue was well handled
by the State Court as compared to Apex court, the legislative interventions at
State level seems to be the most feasible way out.
Above all, it is a
test of humane values, fairness and dignity in a society. It is important that
institutions of the state acknowledge the importance of these values.
