Libertatem Magazine

Section 377: A Battleground between Public Morality and Constitutional Morality.

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The Supreme Court of India, on February 2nd 2016 decided to revisit the much controversial section 377 of the Indian Penal Code, 1860.

To give a brief background about the issue, in the case of Naz Foundation vs. NCT of Delhi, the Delhi High Court held that s.377 was unconstitutional and thereby decriminalized homosexuality. However, the Supreme Court overruled the same later in 2013, thereby again criminalizing homosexuality.

On February 2nd 2013, in response to a batch of eight curative petitions, the Supreme Court decided to invoke its inherent power to revisit the judgment. ‘Curative petition’ is a relatively new process wherein the Supreme Court reserves the right to revisit its own judgment in case it feels that justice has not been delivered.

However, before delving into any debate it is very important to dissect section 377 and to analyze the inherent problems in it. The section defines unnatural offence as carnal intercourse against the order of nature. However, the statute omits to define what is “unnatural offence” and “carnal intercourse against the order of nature”. The court defined the same and held that the purpose of carnal intercourse is procreation and any intercourse which does not result in procreation is unnatural (Dr. MrinalSatish, IBN Live, Dec 13, 2013). Hence by this bizarre interpretation the court made the criteria of age and consent of a person wholly irrelevant and made the sexual expression and identity of homosexuals a crime.

The Supreme Court in its judgment went on to say that by such restriction there is no infringement of Article 14 (Right to Equality) of homosexuals as they are a different class of persons and hence the restriction on their sexual activities is based on a valid classification within the ambit of reasonable restriction of Article 14. The court also went on to state that in the 150 years of existence of the provision, there have been less than 200 reported cases under s.377 and that LGBT constituted a minuscule fraction of the population. However, it beats logic to the extent that if a class of population is a minuscule fraction why can’t they have the right to sexual expression.

Another argument in favor of striking down section 377 was that homosexuality did not fit into the historically upheld values of the Indian society, and by conceding to this argument the Supreme Court made the stand clear that the society is rooted to the antiquated thought process and is in no position to have a mentality in sync with the modern standard. This is specially appalling given that in most foreign states homosexuality is being recognized more and more; and while the Indian judiciary had the chance to conform to the international standards, it instead decided to go reverse and stick to the age old and archaic thought process wherein the only purpose of carnal intercourse necessarily had to be procreation and any intercourse without such a purpose was “immoral.”

It is a matter of utmost disgust and chagrin that in a free society that India purports to be, it is immoral for two consenting adults to express their sexuality but it is not immoral when an archaic provision of the law gives access to breach of privacy of two individuals. The section can well be a recipe for disaster and this fact is amply accepted given that the 172nd Law Commission Report pleaded the deletion of this section as it would serve as a weapon for police abuse in the form of detention, extortion, forced sex, hush money etc. Furthermore, the judgment of the Supreme Court paved the way for additional discrimination against the LGBT section of the population.

The ultimate question in the issue boiled down to constitutional morality versus public morality. The public morality as held by the court meant the age old historical values wherein not just homosexuality but any form of intercourse not leading to procreation is considered unacceptable; while the constitutional morality of the country should have been to accept that society is dynamic and  that societal values change with time. A very simple analogy would be that in the past, the practice of sati was legal and was even considered moral; and when Swami Vivekananda tried to abolish that, it led to a huge outcry. Back then, it was felt that abolishing the practice was against public morality since sati was a custom and was seen as a duty of the widow. It was only after a law was made to abolish the same that it was discontinued and  subsequently the public morality condemned the past practice. Similarly, in the present case the decision of the Supreme Court to use public morality as a veil to restrict and prohibit sexual expression between two consenting adults is nothing short of violation of the constitutional morality which should be treated as the highest morality of the land.

The ramifications of this judgment are not only upon the LGBT community but on the whole Indian society as well. The section applies to intercourse between men and women too which requires the penetration of an orifice other than the vagina. The provision allows the law to intrude on the privacy of any individual, gay or straight, and hence, the most sacrosanct right of a person, i.e., the right to privacy is being violated by this provision. Further, the Supreme Court though it upheld the constitutionality of section 377, it went on to suggest that the parliament review the law and recognize the rights of the LBGT community. Therefore, the fact that even the honorable judges felt that there was a principle inherently bad within the provision gets highlighted, and yet they failed to hold it unconstitutional.

A valiant effort by Shashi Tharoor, to introduce a private member’s bill to amend section 377 was also brought down by an overwhelming majority of 71 votes against to 24 votes in favor (Shalini Nair, The Indian Express, December 19, 2015).

In light of such intolerance towards the LGBT community, the decision by the Supreme Court to refer the curative petition to a 5 judge bench is indeed a welcome ray of hope and one can only hope that the judiciary in all its wisdom doesn’t succumb to the notion of public morality but upholds the omnipresent and omnipotent morality of the constitution. The development will be keenly monitored globally, as when the whole world showed a positive intent of upholding the rights of LGBT, India cracked down upon it; however now there is a legitimate chance to undo the wrong and one can only hope to see the rainbow flags flying high when the final decision is taken.

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