Section 377: A redundant mindset

This article has been written by Raina Mahapatra. Raina is currently pursuing her undergraduate course from Symbiosis Law School, Pune.

In a 23 against 18 vote (6 abstentions) in June 2016, the United Nations Human Rights Council passed a resolution creating a post of an independent expert on sexual orientation and gender identity. This expert, once officially appointed, will be tasked with the job of studying and reporting annually on the nature, cause and extent of discrimination faced by lesbian, gay, bisexual and transgender (LGBT) persons around the world. In many ways, the establishment of the new post exemplifies a growing global trend towards addressing the numerous instances of human rights violations suffered by LGBT persons. It thus came as a matter of grave shame when India, in a manner so unbecoming of its celebrated progressive culture, abstained from voting on the matter.

It must be kept in mind that India’s abstention in this principal vote is nowhere near a display of neutrality. Abstention as a tool, which is supposed to be used in matters to establish indecisiveness or disinterest in a subject, was misused as a subtle weapon of deception aimed at furthering the reach of a law that is decidedly intolerant and casually insensitive of equal human rights that are basic to one’s pride and dignity in a civilised society.

Section 377 of the Indian Penal Code reads as follows:

“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 ten years, and shall also be liable to fine.”

In a landmark judgment in July 2009, the Delhi High Court in all its progressive glory, recognised the inherent injustice in Section 377  and struck it down, holding it violative of the Right to life, liberty and equality as provided in the Constitution of India. However, four years later, in a disappointing display of conservative mindset that feeds regression, the Supreme Court reversed this finding. The infamous case of ‘Suresh Kumar Koushal v. Naz Foundation’ saw the apex court doggedly refusing an equal status to our citizenry. Instead, the court restored Section 377 to its archaic ingloriousness, granting validity to the state’s process to criminalise any acts of homosexual intimacy.

A closer evaluation of the judgment delivered provides no legal basis for the validity of such a law and it is merely the mindset of a few covered in a vague shroud of morality. American philosopher Martha Nussbaum argues that the Supreme Court’s verdict shows an almost pathological emotion of disgust towards homosexuality even when such acts cause no actual harm to any part of the society whatsoever.

What’s more, since the judgment in Koushal, there has been a rise not only in homophobia but also in instances of an abuse of the process of law contained in Section 377. Simultaneously, there have been repeated efforts made by the present ruling dispensation to further penetrate the law’s deeply damaging effects. At least two private member’s bills moved in the Lok Sabha by Shashi Tharoor, which sought decriminalisation of homosexuality were met with predictably wicked defeats. It is also demoralising that although the referral to a Constitution Bench of the curative petitions offers a glimmer of hope, the chances of their success, given the court’s usually guarded approach to such challenges, are terrifyingly slim.

Arguments against homosexuality find their basis in the premise that it is against natural law, which lays down guidelines for civil and sexual unions between a male and female only. Embracing homosexuality translates to converting a moral wrong into a civil right and as a result, what is produced is a sterile union as opposed to a family. The incredulous claim of fundamentalists that homosexuality is a ‘choice’ despite preponderance of evidence regarding how one’s sexuality is purely biological is a blatant disregard of science and common civic sense. Similarly, homosexuality isn’t merely a set of behaviours; it is a person’s identity, one he should be able to choose freely and without any fear of repercussions. An important argument put forth is that decriminalisation of Section 377 imposes its acceptance on all of society. The sardonic irony in this argument doesn’t even deserve clarification.

It is undeniable that a society’s moral judgment must play some role in determining the extent of its criminal laws. However, as the legal philosopher Ronald Dworkin once wrote, “a conscientious legislator who is told a moral consensus exists must test the credentials of that consensus.” The community’s moral standards thus cannot be arbitrarily gleaned nor can it be a product of inexplicable revulsion and disgust. In the case of Section 377, any reasonable analysis would show us that to regard homosexual activity as somehow immoral violates the innate natural autonomy that every person has over his or her respective sexuality. Justice Singhvi’s judgment is predicated on a bizarre belief that the only point of democracy is to accept the majority’s verdict. But democracy demands much more than the mere enforcement of majority will. It requires a fearless commitment to equality and justified protection of minority rights.

The debate right now, thus, isn’t about the technicality of the law and how it doesn’t hold any reservations against homosexuality but merely against carnal intercourse. The real question remains the blatant audacity of the judiciary system to hide behind the veil of such a minute technical excuse after upholding the orthodox and unimaginative mindset that criminalises a way of life, something that a person has absolutely no control over; something that is imperative to his Right to Life, Liberty and Equality.


The December book bucket

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