The continued existence on the statute book of Section 377, the provision of the Indian Penal Code that criminalises “unnatural” sex, is an anachronism in a country that prides itself for its democratic credentials. When explaining its disappointing 2013 decision to overturn the Delhi High Court’s judgment on decriminalising homosexuality, the Supreme Court held that it was for Parliament to amend the offending section, not the judiciary. In the two years since, an array of leaders across the political divide — including the Congress’s Sonia and Rahul Gandhi, and
Union Finance Minister Arun Jaitley — have supported abolishing at least parts of the 1861 law. Yet nothing happened. Now, with Congress MP Shashi Tharoor set to introduce a private member’s bill in Parliament to decriminalise sexual intercourse between consenting adults, irrespective of gender or orientation, parties have another opportunity to right a wrong.
Though the Rajya Sabha passed a private member’s bill — the Rights of Transgender Persons Bill, 2014 — earlier this year, such bills in general do not have an illustrious record of becoming law, with 1970 being the last time such legislation cleared both Houses. Three hundred such bills were introduced in the 15th Lok Sabha, but barely 4 per cent of them were discussed — the overwhelming majority lapsed without even being debated. That must not be the fate of this bill. If the government and the Opposition are serious about ending discrimination against LGBTQ individuals, who have borne the brunt of this harsh law, they must throw their support behind this bill, which seeks to recast an oppressive provision into a measure to punish all forms of non-consensual sex. In placing consent at the centre, Tharoor’s bill limits state interference in the private lives of adult citizens.
The courts have routinely stepped in to expand rights in areas where legislators have feared to tread. Will lawmakers this time display the political courage to protect their most vulnerable constituents?