Time to annul Section 377

Deccan Herald Jan 12 2018, 01:42 IST
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The decision of a three-judge bench of the Supreme Court to refer a petition seeking to repeal Section 377 of the IPC, which criminalises same sex relationships, to a constitution bench has given hope to the LGBTIQ (lesbian, gay, bisexual, transgender, intersex and queer) community that their long fight for their rights and justice would finally see victory. Though judicial decisions cannot be anticipated, the very fact that the bench thought the 2013 decision of the court, which upheld the validity of Section 377, needed reconsideration is a positive sign. The comments of the bench show that it thinks the 2013 ruling is outdated and not in accordance with the constitutional guarantee of an individual's freedom. The bench specifically said that a "section of people who exercise their choice should never live in a state of fear". This is a clear reference to the statement in the petition that the members of the community live in fear of police action.

All those who value human rights and basic freedoms have considered the 2013 verdict which set aside the 2009 Delhi high court judgement striking down Section 377 as wrong and retrograde. The court's argument that there was no need to outlaw Section 377 because the LGBTIQ community constituted only a minuscule minority is most unacceptable because it assumes that a group is entitled to its rights only if it has numbers. Two important court judgements since then have prepared the ground for annulment of Section 377. In the seminal judgement of August 2017 which made the right to privacy a basic right, the court specifically said that this right also means protection of rights based on sexual orientation and that discrimination based on sexual orientation and gender identity must end. The judgement will be tested in the Section 377 case, and will hopefully guide it. Another ruling of the court in 2014, in the National Legal Services Authority case, had stated that transgenders are entitled to human rights.

These rulings and the court's observations on Monday give the hope that the unjust Section 377, which is a colonial legacy and representative of Victorian morality, will be dropped for good by the constitution bench. The court also observed on Monday that social morality changes from age to age and determination of the "order of nature'' is not a constant. This is to be noted because Section 377 makes "carnal intercourse against the order of nature'' a criminal offence. In a constitutional society of democratic rights, no group should face discrimination and persecution on account of natural preferences. Sexual orientation should, in fact, be considered as part of the right to life.

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