Much of the blame for the Supreme Court judgment overturning the Delhi High Court’s path-breaking 2009 verdict decriminalising homosexuality lies at the door of the political class.
Writing the judgment that took consensual sexual acts of adults in private out of the ambit of Section 377 of the Indian Penal Code (IPC), Justice AP Shah wanted Parliament to amend the IPC and streamline its provisions. He asked Parliament to implement the 172nd report of the Law Commission (2000) which sought deletion of Section 377 and inclusion of Section 377’s residual provisions in Section 375 of the IPC that currently defines rape.
The Law Commission had recast Section 375 under the head “sexual assault” encompassing a wide range of non-consensual sexual offences/assaults including vaginal, anal and oral penetration by penile or non-penile means. The suggested definition would make sexual assault a gender-neutral offence and also included the non-consensual acts incriminated by Section 377, effectively rendering the latter redundant. In November 2012, the Protection of Children from Sexual Offences Act was notified bringing all sexual offences against minors in its ambit. The sole reason the Delhi High Court had not repealed Section 377 in its entirety was the absence of such a law protecting children. Now there was no reason for Section 377 to continue and the onus was on Parliament to repeal it.
The opportunity for review came sooner than expected when the December 16 protests focused the discourse on sexual assault laws. The Criminal Law Amendment Ordinance, 2013, implemented the Law Commission’s and Verma Committee’s recommendations on Section 375 but was silent on Section 377. After women’s groups red-flagged the predominance of sexual assault offences against women and the possibility of misusing this section against women, the gender-neutral provisions were diluted by Parliament and “rape” replaced “sexual assault” again.
The possibility of male-rape (man raping a man) was ignored by Parliament thus restoring legitimacy to S377. If Parliament had repealed 377 while passing the Criminal Law Amendment Act, 2013, would the Supreme Court have dared to reinstate it? Improbable, because it would have precipitated a judicial-legislative stand-off.
A number of Congress politicians have come out in support of homosexuality. While this is a heartening change, their attempts to hedge legislative recourse by talk of filing review petitions in the Supreme Court, is worrisome. The political class has a history of quick recourse to legislation to override judicial activism and judicial intrusion into the legislative and executive domain. In contrast, the judicial process could take years. This leaves our fates again in the hands of an ossified public morality that the judiciary and many in our society espouse rather than the constitutional morality of equality, privacy, liberty and dignity of all citizens.
In stirring prose, UPA chairperson Sonia Gandhi has succinctly expressed the aspirations and the disappointment of the LGBT community. She has urged Parliament to correct a historic wrong.
India has a choice to make; it must stand with the comity of nations like South Africa, Canada and Brazil which have passed anti-discrimination laws freeing same-sex activity and marriages. Or the countries like the US and UK where significant sections of the political establishment are pro-actively making efforts to end legal discrimination. All that is required is a minor amendment in the IPC in Section 375 re-introducing the sexual assault concept and male-rape besides repealing Section 377. Parliament is getting its best chance to make amends. Do not disappoint us.