iconimg Tuesday, June 30, 2015

Satya Prakash , Hindustan Times
New Delhi, December 12, 2013
The Supreme Court verdict criminalising consensual homosexual acts goes against established constitutional principles of personal liberty, equality before law and non-discrimination on the basis of sex or sexual preferences.

A bench headed by justice GS Singhvi, which upheld the constitutional validity of Section 377 of the Indian Penal Code on Wednesday, put the ball in Parliament’s court, saying it was for the legislature to take a call on the desirability of the controversial provision.

The verdict is bad for several reasons.

First, it appears to accord primacy to perceived public morality over individual liberty and privacy guaranteed under Article 21 of the Constitution.

Second, it blurs, if not obliterates, the Lakshman Rekha meant for the state, which can now peep into bedrooms of consenting homosexual adults and punish them for what they consider completely natural sexual behaviour.

Though Section 377 IPC does not criminalise people with a particular orientation and merely identifies certain acts which would constitute an offence, it prescribes life imprisonment for voluntary “carnal intercourse against the order of nature with any man, woman or animal”.

Can the state, society or religious leaders regulate the sexual preference and behaviour of consenting adults in private? The obvious answer is NO. What will the state achieve by obstructing an individual’s freedom and criminalising his/her intimate moments?

Further, how will the state punish a person for a consensual sexual act unless the other person involved complaints about it?

HT Edit: SC ruling a setback for LGBT community

HT Analysis: Section 377, a push back into the closet?

Read: Why Delhi high court decriminalised gay sex

Interestingly, the SC was not sure if a court would punish people for consensual intercourse against the order of nature the way it does for non-consensual homosexual acts.

Homosexuality did exist in Indian society before the July 2, 2009 verdict of the Delhi High Court. The only implication of the HC verdict was that a person could not be treated like a criminal for his/her sexual preference.

The SC has noted that the Delhi HC overlooked the fact that only a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders (LGBT) and in the last 150 years, less than 200 persons have been prosecuted under Section 377 IPC and therefore, it was not a sound basis for declaring it unconstitutional.

The SC may not be right. Even if one person is victimised due to a wrong law, it should be sufficient for declaring the law illegal. This is not just about technical legal points. Rather, it is about being tolerant to the sexual minority and treating them with dignity.

Many religious groups had challenged the Delhi HC verdict on the ground of morality.

Read: Same-sex love extolled in Indian literature, history

Read: A timeline of events and legality of homosexuality in India

Read: A timeline of LGBT rights throughout the world

What is forbidden in religion need not be prohibited in law. Morality cannot be a ground to restrict the fundamental rights of citizens. In case there is a conflict between public morality and law, the latter based on constitutional principles must prevail.

Finally, Indian society has changed a lot since 1860 when Lord Macaulay framed the IPC. Any interpretation of its provisions must reflect it. Let’s not forget law is for the society not vice versa.

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