LGBT Rights – Transgender Bill, Sec. 377, etc.

[op-ed snap] Who’s responsible for modernizing a 150-year-old law?

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Mains Paper 2: Polity | Separation of powers between various organs dispute redressal mechanisms & institutions

From UPSC perspective, the following things are important:

Prelims level: Fundamental Rights

Mains level: Right to privacy and its role in the repeal of Section 377


Context

Debate over Section 377

  1. A five-judge bench of the Supreme Court just concluded its hearing on a law that traces its history back nearly 500 years
  2. Section 377 of the Indian Penal Code (IPC) is modelled on Britain’s Buggery Act of 1533
  3. The “vice” of sodomy and bestiality that forms the basis of this offence in today’s Section 377 can be traced directly to that ancient law

Origins of Section 377

  1. Section 377 reads as follows: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to a fine.”
  2. The law found its way to India when the architect of India’s IPC in 1860, Thomas Macaulay (often credited with bringing English education to India), added it into the code
  3. The terms “carnal intercourse” and “against the order of nature” are not defined precisely anywhere in the code

Delhi HC exclusion

  1. In a landmark judgement in 2009, the Delhi high court, opining on Section 377, excluded acts of carnal intercourse by consenting adults in private
  2. The court found Section 377 to be inconsistent with the fundamental rights under Article 13(1) of the Constitution
  3. Additionally, it was found to be in violation of the right to privacy and dignity (Article 21), freedom of expression and right to equality (Article 19 (1) and Articles 14 and 15)
  4. The judgement also stated that it would unfairly target the LBGTQ+ community because the acts that are criminalized are closely associated with homosexuality
  5. The Delhi bench, adding practicality to wisdom, said that “this clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report”
  6. This report suggests the complete recast of several sections of the IPC, and, in so doing, recommends the deletion of Section 377 altogether

SC’s disagreement with Delhi HC

  1. A two-judge bench of the Supreme Court overruled the Delhi high court judgement on the grounds that it was legally unsustainable
  2. The bench took a literal and technical view rather than the wider sweep that the Delhi high court had applied, putting legal technicality above judgement and wisdom

Philosophical dichotomy prevails

  1. This philosophical dichotomy is at the root of the legal debate on Section 377
  2. One side (the literalists) holds that Parliament must enact laws that the judiciary should enforce, and, therefore, it is up to Parliament to change the law
  3. The other side (the pragmatists) has always maintained that the courts must opine if Parliament is unable or unwilling to modernize a 150-year-old law

SC might favour Delhi exclusion

  1. There have been many statements made by the bench that make it sound likely that the court will rule in favour of the Delhi exclusion
  2. Justice Rohinton Fali Nariman has said that the whole object of the fundamental rights chapter is to give power to the court to strike down laws that majoritarian governments do not touch due to political considerations
  3. If Section 377 of the IPC goes away entirely, there will be anarchy
  4. We are solely on consensual acts between man-man, man-woman. Consent is the fulcrum here. You cannot impose your sexual orientation on others without their consent
  5. One other factor in favour of the Delhi exclusion is an intervening and major judgement on privacy made in the Puttuswamy case
  6. A nine-judge bench upheld the right to privacy as a constitutional right in 2017
  7. That judgement will likely combine with a pragmatist view and offer the Delhi exclusion on Section 377

Judicial overreach or judicial interpretation

  1. The broader question on whether the right to privacy in the Puttuswamy case and the Delhi exclusion on Section 377 imply judicial overreach or merely judicial interpretation in the context of weak and highly political governments, remains
  2. The nine-judge bench for Puttuswamy and the five-judge bench on Section 377 (if they rule in favour of the Delhi exclusion) will make it settled law for now

Way Forward

  1. The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant
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