Pratyaya | The Debate on Constitutional Validity of Section 377

Going by the reaction to Aarushi verdict and the recent Supreme Court Judgment, it seems like we are approaching the courts not for legal relief but to test the legal knowledge of Judges. The expert journalists on social media and TV studios any way know all the answers and they don’t even need to wait for the judgment to come out before criticizing the verdict.

Consider the debate around constitutional validity of Section 377 of IPC. It is indeed a matter of great shame that the state is regulating sexual preferences of consenting individuals. We must legally and formally recognize the notion of equal rights for LGBT community. But should the legislature bring this change or should we leave this job to the courts? It is argued that Right to Equality is already a fundamental right and no person can be discriminated on the basis of religion, race, caste and sex. The Delhi High court reasoned that the word “sex” in this article includes not just gender but also sexual orientation. Using this argument the High Court felt that Section 377 is discriminatory so far as consensual adult sex is concerned. It is a very progressive judgment and the honorable Judges have brought out a fine legal reasoning. However, there is no explicit judicial precedent on this and the court had to rely on Judgments from other countries, law commission reports, Prime Minister Speeches etc. The Judgment is not without any issues, because it is not just striking down a law (or a portion of it) but it also gave a new meaning by introducing the word “consent”.  It is precisely where I object to this creativity. The courts should either strike down the law or uphold its constitutionality but they should leave additions and subtractions to the legislature.

The Supreme Court today overturned the Delhi High Court verdict and said that it is for the parliament to do necessary amendments recognizing these rights. Let us look at the options which Supreme Court has:

  1. Uphold the constitutionality but request the parliament to change the law recognizing these rights.
  2. Recognize Article 14 argument for LGBT community and declare Section 377 in its entirety as ultra vires of the constitution.
  3. Add a different meaning to Section 377 to mean that consensual sex is fine but “non-consensual”  sex is “against the order of nature” (The Delhi High Court way).

The Judgment of the Supreme Court is not in the public domain yet, but it seems like the court opted for the first solution.

As much as it is desirable to bring sexual orientation under Article 14, we should first fix some of our laws before that. For instance, Section 375 recognises rape as an act forced by a man on a woman.  It does not recognize the forced sex between a woman and another woman or between a man and another man as rape.  By the same logic of Delhi High Court, even this law is then discriminatory according to Article 14 of the constitution. It is absurd to suggest that forced sex by a man on a woman is rape but the same if done by a woman to another woman is “unnatural sex”. The law commission did recognize these infirmities and suggested that Section 375, 376 should be amended to cover the same sex rape and then Section 377 should be deleted completely. This would have been an ideal solution but then this involves substantial legislative work and only parliament can do this.

While recognizing the rights of LGBT community is very important and we have to act on this issue with a sense of urgency, this is not about the constitutional validity of one section of the penal code.  That the judiciary is anyway venturing into the domain of legislature on some issues is not an argument for asking it to interfere in one more issue. By giving a new interpretation to Section 377 the Delhi High Court has created the same confusion which we have with the Sedition law. The text of the law says something, the court interprets it in a different way and the policeman on the ground has no clue about all this.

For problems like this the ideal solution rests with the parliament and we should push for a comprehensive legal framework recognizing the rights of LGBT community.