Will Modi govt consider repeal of IPC Section 377?

Controversy characterises Union Law Minister Sadananda Gowda’s recent statement that the government could consider repeal of Section 377 of the Indian Penal Code (IPC) which he later claimed to have been misquoted.

The context for a reference to this issue was the recent US Supreme Court judgment that upheld the right to marriage for the Lesbian, Gay, Bisexual and Transgender (LGBT) persons as a fundamental right.

In India, the Transgender Rights Bill, 2015, which the Rajya Sabha recently passed with the Bharatiya Janata Party’s (BJP) support, is noteworthy of living up to its people-oriented poll promises to distinguish itself from other political parties. But it is too early to judge the Modi government on the LGBT rights’ issues though some thinking on the issue is a step in the right direction.

Despite diverse forms of human sexuality which span heterosexual, bisexual, homosexual or transgender sexual intimacies, the existing law in the form of Section 377 penalises all forms of sexual intercourse other than a penile-vaginal sexual intercourse. This reduces the legal domain of freedom of sexual choices to mainly a male-female sexual intercourse only. The country’s rich and inclusive cultural heritage also portrays diverse forms of sexual intimacies through art, literature and temple depictions.

Only after the British colonial rule which legislated against free sexual choices of people in 1860 that homosexuals were deprived of their basic rights like the right to dignity, freedom of sexual expression or equal treatment in the eyes of law. B R Ambedkar, while holding debates in the Constituent Assembly on Article 372, had articulated that the power to repeal colonial laws should be decided by successive parliaments.

However, Ambedkar foresaw a problem with majoritarian politics that characterises parliamentary democracy where the majority party can swing legislations in its favour due to numerical superiority. Therefore, a parallel power under Article 13(1) was vested in the judiciary to declare any colonial law unconstitutional in case it is found to be in contravention with the fundamental rights.     

It is incumbent on parliamentarians and ministers to act as per what is constitutionally moral rather than be worried about appeasement of popular sentiments. Political parties are therefore constitutionally empowered to initiate parliamentary debates over the need to repeal Section 377. Of course, they have for the last 65 years, chosen to remain silent due to misplaced apprehensions that doing so would be politically suicidal.

During the 1950s and 1960s, British parliamentarians were also apprehensive about legalising same-sex sexual intimacy. However, in 1967, British Parliament passed the Sexual Offences Act that permitted all forms sexual intimacies between consenting adults, including gay sex.

In 1957, the British government tabled the recommendations of the Woolfenden Committee Report in Parliament which sought to repeal the effects of Buggery Act of the 1500s. This was possible only because of untiring efforts of the ruling political party of that era.   

The Supreme Court, in 2004, directed the Delhi High Court to admit the petition filed by the Naaz Foundation that led to the historic judgment of striking down of Section 377.
But the Supreme Court, in 2013, reversed the High Court judgment and upheld the constitutionality of Section 377 and left the matter to Parliament to repeal the same or continue with it. It is noteworthy to mention here that the top court judgment is currently facing a re-look in a curative petition.

Landmark verdict

Hence, it is not worthy to speculate about it at this stage. It can be noted here that the Supreme Court in 2014, in the case of NALSA v Union of India, delivered a landmark verdict in favour of the transgenders which provided them with equal rights and opportunities under the law.

Further, the court also directed the governments at the Centre and the states to ensure recognition of transgenders as a separate gender, and create equal opportunities for them in educational institutions and government jobs by providing reservations.

The Narendra Modi-led BJP attained power in 2014 on their poll promise of Sabka Saath, Sabka Vikas (inclusive participation, inclusive development). Their manifesto articulates making a stronger India on the model of inclusive development and participatory democracy. If that be the case, then it is necessary for the party to now support the oppressed and marginalised LGBT population across the country.

In case if it does not, then it faces being seen as a party with double standards. Amidst all this development, two questions arise on the BJP’s future strategy: In case a private member’s bill (like the Transgender Rights Bill) is introduced in the Parliament to repeal Section 377, will the BJP support the same? Will it ask its own law minister to introduce a Bill to repeal Section 377?

In this case also, will the government show the same sense of strength and urgency like in debates over the Land Acquisition Bill amidst opposition from all corners?

The probable prospects of these questions becoming a looming reality in the remaining tenure of the Modi government may be genuinely questioned by many. Else, the government will be

confronted by these questions to answer its electorate as to what it means by ‘inclusive development’ and ‘participatory democracy’.

After all, it is the similar situation in the US where the Presidency under the Obama administration celebrated the Supreme Court verdict on marriage-equality by lighting the White House in the rainbow colours depicting LGBT pride.

(The writer is Research Scholar, National Law School of India University and Assistant Professor, School of Law, Christ University, Bengaluru)