A state has no right to intervene in consensual sex conducted in private as such a power would infringe upon the fundamental rights of citizens in a democracy.
A question arises: Are only consensual acts of sex for procreation permissible by the law as it exists in Section 377 of the Indian Penal Code, which has been revalidated? It is in the fitness of things that the shocking judgement passed recently by a two-member Supreme Court bench re-criminalising sex (except of the consensual sort between a man and a woman) by reviving the provisions of Section 377 be challenged.
It is another matter that the archaic law, courtesy a colonial legacy, has been in existence for more than 150 years. Such prudish Victorian morals were far from an enlightened Indian view on sex as propagated by classicists like Vatsyayana.
True, the law has never been enforced in living memory and its existence perhaps only permitted a shakedown by the police who could harass the LGBT community. But in the modern age, in which sexual mores have been subjected to successive doses of liberal attitudes, it is incumbent on government to remove or redo laws that were, per se, discriminatory.
In passing the buck to the judiciary rather than grappling with the sensitive issue on its own and seeking to make new laws that are more equitable and inclusive, the executive and legislative wings of government have not been seen in good light.?
They have not acted for so long despite a recommendation from the Law Commission. An undercurrent of election politics may be seen impelling the Centre now to act quickly in the wake of the overriding judgement that laid to waste the progressive 2009 ruling of the Delhi High Court that had dared to deal with an ancient shibboleth and had ruled: “We hold that sexual orientation is a ground analogous to sex, and that discrimination on sexual orientation is not permitted under Article 15.” Given the history of the case, the government may be right to the extent of filing the review petition that hopes to take the matter to a fuller bench of the apex court.
But, chastising the top court in the review petition for “not addressing the issue despite a clear finding from the Delhi HC on the same” appears a half clever way to shift the blame when we know that the executive and the legislature did nothing about an 1860 law.
This matter of sexual equality and the “dignity and self-worth of homosexual men and transgender/hijra persons” is too important to be left hanging. The case is a fit one for a full bench of five judges to hear whether an open hearing of the review petition happens or not.
