“Turn up the lights. I don’t want to go home in the dark.”
If things go in the expected direction it can be believed now that consensual gay sex may once again be decriminalised. The ongoing hearing before the Supreme Court is giving indications in that direction only. A five-judge bench headed by Chief Justice Dipak Misra, hearing a clutch of petitions challenging the constitutional validity of the 158-year-old penal law, also rejected a proposal of lawyers, seeking retention of Section 377 of the Indian Penal Code (IPC), that public opinion should be elicited on the matter, saying it did not want a referendum but would go by constitutional morality. The apex court has clearly stated that the social stigma and discrimination attached to the LGBTQ (lesbian, gay, bisexual, transgender and queer) community would go if criminality of consensual gay sex is done away with while maintaining that it would scrutinise the legal validity of Section 377 in all its aspects. Introduced into Indian statutes by the colonial British parliament in 1872, Section 377 penalises sexual activity “against the order of nature,” criminalising thereby consensual sex between adults. In 2009, a landmark judgment by Justices A P Shah and S Muralidhar of the Delhi High Court had found Section 377 in violation of Articles 14, 15 and 21 of the Constitution, and a curb on the right to life itself. Three years later, the Supreme Court overturned the decision and left it to Parliament to amend the law. The government has now left it to the apex court to test the constitutional validity of the Section 377, urging that issues like gay marriages, adoption and ancillary civil rights of LGBTQ should not be dealt by it.
Section 377 refers to ‘unnatural offences’ and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to pay a fine. There is no denying that over the years, our people have created an environment in the Indian society which has led to deep-rooted discrimination against people of same sex involved in a consensual relationship and this has impacted their mental health also. At a time when nations across the world are adopting more and more progressive and inclusive legislation, such as the legalisation of same-sex marriage, India’s refusal – on the basis of an outdated ‘moral’ framework – to decriminalise consensual sexual acts and relationships between adults is a blot on the republic.
The question before the apex court is not one of morality but legality. It has been said time and again, that criminalising a person’s identity solely on the basis of sexuality stands in gross violation of Article 21, which guarantees every Indian citizen the right to life and personal liberty. It needs to decide whether the Constitution framed and adopted by an independent country trumps a colonial-era penal code. It needs to be emphasised that as a minority, the LGBT community, like other minority communities, needs protection – not prosecution, persecution and ostracisation. The bench can now consign to history an archaic and repressive piece of legislation that criminalises ‘unnatural’ sex and denies a minority community its fundamental human rights.