On 5th September the
Constitution Bench of the Supreme Court delivered a unanimous judgement which
decriminalised homosexuality to an extent. The judgement drew curtains on the
debate pertaining to the core of Section 377 of the Indian Penal Code.
But have we really reached the end? In
my view there is still a long way to go.
What is Section 377 of IPC?
Section 377 of the IPC states: “Whoever voluntarily has carnal intercourse
against the order of nature with any man, woman or animal, shall be punished
with 1[imprisonment for life], or with imprisonment of either description for
a term which may extend to ten years, and shall also be liable to fine.”
This archaic British law dates back to 1861.
The Current Position
The five-judge Constitution Bench of
the Apex Court delivered four separate judgements but arrived at a unanimous
conclusion. In our quest for headlines we tend to forget the main takeaways of
the judgement itself. The core of this judgement, for which we must commend the
wisdom of the Judges, is that Section 377 of the IPC has NOT been fully
declared as ultra vires; only certain provisions of the said Section (namely
consensual intercourse between two adults of the same gender in private) have
been struck down. This is based on two sound reasons: i) Homosexuality is not ‘against
the order of Nature’ and ii) Bodily autonomy is individualistic and expression
of intimacy is part of right to privacy, which is a Fundamental Right.
This implies that the provisions of
Section 377 in its pristine form will continue to apply in case of
non-consensual intercourse between two adults, consensual intercourse between
two adults in public, and intercourse between a man/woman/transgender and an
animal, which will continue to be held as ‘against the order of nature’, as the
Supreme Court has left that territory untouched.
The Way Ahead
As the final interpreter of the
Constitution, the Supreme Court has done its job with superb aplomb. Now, the
focus shifts to India’s supreme law making body, the Parliament, to settle
remaining issues that revolve around Section 377. It is for the Parliament to decide
if non-consensual intercourse between adults of same gender is to be treated as
‘rape’ or as ‘against the order of Nature’. If it decides to consider it as ‘rape’
then the provisions in Criminal Law and Evidence Act pertaining to rape would
have to be made gender neutral.
There can be no two views that Constitutional
Rights of individuals are of utmost importance and that they must be
safeguarded. However, we cannot be blind to the fact that India is a
civilisation which has a history of hundreds of centuries. Our culture holds
certain relationships as sacred, it is our obligation to protect the sanctity
of such relationships. Constitutional Rights cannot be cited as a shield for
moral bankruptcy, the line is very thin but it has to be demarcated. Therefore,
it is high time that the Parliament takes a view on subjects such as incest.
The Judiciary has done its bit, now it
is the turn of our Legislature. Will the Parliament stand up and do its bit or will
it remain a mute spectator? Only time can answer that question.
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