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The right to choose

Section 377 IPC was enacted in 1860 by British colonial rulers in the heyday of Victorian morality.

Written by Soli J. Sorabjee |
July 5, 2009 2:27:11 am

Section 377 IPC was enacted in 1860 by British colonial rulers in the heyday of Victorian morality. It punishes inter alia sexual intercourses between same sex persons with life imprisonment or rigorous or simple imprisonment up to 10 years. After 1967,homosexual acts between two consenting adults in private are no longer an offence in England. Homosexuality has been decriminalised in several countries of Asia,Africa and South America. The US Supreme Court in 2003 ruled in Lawrence vs Texas that criminalisation of homosexuality between consenting adults was unconstitutional because it violated their fundamental rights of liberty and privacy. Courts in other jurisdictions namely,Canada,Australia,South Africa,Fiji and Nepal,as also the European Court of Human Rights in Strasbourg,have invalidated laws criminalising sexual intercourse between same sex adults. Despite the above trend and the 172nd Report of our Law Commission submitted in 2000 favouring abolition of Section 377 this monstrous provision continued to remain on the statute.

Fortunately the Delhi High Court in its recent landmark judgment after a thorough and excellent analysis of the judgments of various courts and the legal and medical literature on the subject has ruled as follows: Section 377 insofar it criminalises consensual sexual acts of adults above 18 years of age in private is violative of the fundamental rights guaranteed by Articles 21 (personal liberty) and Articles 14 and 15 (non-discrimination). The High Court has not struck down Section 377. It has expressly stated that Section 377 will continue to govern non-consensual sex involving minors.

In essence homosexuality has not been legalised,much less advocated or championed. It has been decriminalised with the salutary consequence that the police will not be able to barge into a person’s bedroom and terrorise him or her with arrest and criminal prosecution with all the attendant trauma and stigma unless the extortionate demands of the police are met. It is well known that Section 377 had become an instrument for harassment and blackmail. The judgment rightly removes the stigma that a gay person is a criminal or an immoral person. If some adults because of their sexual orientation are impelled to express and fulfill their affection with same sex persons in the privacy of their bedrooms without causing any offence or harm to anybody—except self appointed guardians of morality—surely they cannot be treated as criminals,their personal liberty violated nor can they be discriminated against for their alleged ‘unnatural’ acts. Pray,who has the authority to define what is unnatural or against the order of nature? If one subscribes to the regressive notion that the sole aim of sexual intercourse must be for procreation,then an absurd consequence will be that oral sex between husband and wife would be punishable under Section 377. Incidentally oral sex is vividly portrayed in Khajuraho temples.

The legal merits of the judgment may be debated. However,to attack the judgment as an assault on the culture and fabric of Indian society betrays a narrow and sick mentality. And for Heaven’s sake do not bring religion into the matter. What may be regarded as sinful by some religious leaders,is not necessarily a crime. For example,contraception is prohibited by certain religions and considered sinful. But it is a far cry to proscribe that activity as a punishable crime.

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The Delhi High Court judgment has liberated persons in the judiciary,and in the fields of law,literature,science and other disciplines from the stigma of criminality and immorality solely because of their sexual orientation. The real merit of the judgment lies in its recognition that intimacies,privacies and autonomies of human life and the right of an individual to make choices,which does not harm or infringe the rights of other persons,cannot be criminalised. The judgment gives effect to the value of inclusiveness and highlights a vital fact that where society can display inclusiveness and understanding,all persons can be assured of a life of dignity and non-discrimination. It is hoped that this progressive and enlightened judgment is accepted by the State.

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