JOIN USThe signals coming from the Supreme Court’s hearing of the petitions against Section 377 of the Indian Penal Code, which criminalises “sexual acts against the order of nature’’, are that the retrograde provision will be struck down. All “unnatural’’ actions and conduct like gay sex are offences under the Section, which has pushed generations of people into the shadows and underground. The five-judge Constitution Bench hearing the case had sought the views of the government on the matter. The government has now told the court that it prefers to leave it to the wisdom of the court to repeal or retain the law. But by doing so, the government has only evaded its most sacred responsibility. It should have told the court that it supports the repeal of Section 377 and stood for the constitutional rights of all individuals. Perhaps, the BJP government fears a backlash from its own conservative vote-bank if it were to take such a stance.
The court has given enough indication that it would reverse its 2013 judgement on Section 377. It had then refused to uphold a 2009 Delhi high court judgement which had held that Section 377 violated the fundamental rights of citizens. Observations made by the judges and some important judgements made by the court after 2013 support this. Chief Justice Dipak Misra said that “if Section 377 were legislated today, it would be struck down’’. Justice Indu Malhotra observed that homosexual behaviour is not an aberration but a variation. Justice Chandrachud said that there should be no discrimination against the LGBTQ community because every citizen has equal rights under the Constitution. The historic judgement in the 2017 Puttaswamy case held that the right to privacy is a fundamental right and sexual orientation is a part of it. In the March 2018 Hadia case judgement, the court asserted the right of adults to choose their partners without interference from the government, parents or anybody else. So, it is almost certain that Section 377 is on its way out of the statute book.
The question perhaps is how wide the scope of the judgement will be. The court is now only looking at the legality and constitutional validity of Section 377. It will not go into other issues resulting from the decriminalisation of homosexuality, like the right to parenting and adoption, inheritance, etc. The government also does not want the court to examine these issues because it may not be ready to accept all the consequences of the decriminalisation of homosexuality. But both the executive and parliament and eventually the court will have to look at these issues in the coming days.