Remove Sec 377 from rule books

A little over two years after the Supreme Court recriminalised same-sex relationships, an opportunity has opened up for the apex court to rectify that retrograde decision. It has referred to a five-judge Constitution Bench its 2013 ruling that upheld Section 377 of the Indian Penal Code, which makes gay sex a crime. Liberal Indians and members of the Lesbian, Gay, Bisexual and Transgender (LGBT) community will be hoping that the bench will undo the apex court’s earlier “miscarriage of justice.” Section 377, a 155-year-old colonial era law holds same-sex relations to be “against the order of nature” and an “unnatural offence,” punishable with a jail term. While there have been no instances of Indians being convicted or jailed under this regressive law, it was a stick in the hands of the police and other authorities to intimidate and harass homosexuals, and blackmail and extort money from them. In 2009, the Delhi High Court described the archaic law as discriminatory and ruled that homosexual relationships between consenting adults should not be treated as a crime. Political, religious and social conservatives were appalled and took the matter to the apex court, which sadly overturned the landmark ruling. Tuesday’s decision by the Supreme Court is a step in the right direction as it opens up space for a larger bench to reconsider the previous position on homosexuality.

While upholding Section 377 in December 2013, the apex court had thrown the ball into the legislature’s court. It declared that it was up to parliament to legislate on Section 377. However, parliament has failed India on this question so far. Member of Parliament Shashi Tharoor’s attempt to introduce a private member’s bill on decriminalising gay sex, for instance, was rejected by parliament a couple of months ago. The constitutional bench is the LGBT community’s last hope and the judiciary, which has played a stellar role in pushing for progressive legislation in this country, must not let them down.

The LGBTs suffer grave discrimination, injustice and ostracism at home, work and in society. This is untenable especially since the Indian Constitution guarantees all citizens equal rights. In recent years, India has taken sm-all but significant steps towards inclusion of transgenders. It has recognised them as a third gender which is entitled to the rights and protection that the constitution extends other citizens. A country that claims to be a vibrant democracy should not be treating homosexuals as criminals. The judiciary must shed its regressive outlook on same-sex relationships. Archaic laws that discriminate and oppress must be removed from our rule books.
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