On Sec. 377, light at end of tunnel?

The wrangle over Section 377 IPC has more to do with human rights than sex and its criminalisation. The LGBT (lesbian, gay, bisexual, transgender) community has been battling to secure the right to dignity of life and free choice, including over consensual sex.

If there’s now some light at the end of the tunnel, it has to do with the Supreme Court being of a different mindset than it was in 2013 when it quashed a pathbreaking Delhi high court ruling and upheld Section 377 on the grounds that its constitutional validity cannot be questioned.

Now, in putting the matter up before a Constitution Bench, the judges have signalled that they are at least prepared to examine if they made a mistake and the earlier order needs revising.

The question of the affected community being a minuscule one seems to be a hollow argument. The possible admission of the curative petition by a higher bench represents the best chance for litigants to go forward on an important issue of denial of the right to privacy and dignity.

The battle is still far from over, as the Constitution Bench will have to map the way forward before a final judicial pronouncement on the subject, that may still take a while.

However, the Chief Justice’s view that several questions with “constitutional dimensions of importance” having cropped up is reason enough to believe the issue may be moving in the right direction.

The seriousness of the issue of fundamental rights and natural justice is apparent in the modern age, in which no one’s rights are to be treated lightly, certainly not in countries and societies that take pride in their democratic character.

There is always the hope that LGBT rights will receive a fair hearing, but in case it falls at this hurdle too, the community can still hope to awaken legislators to the need for action.

The problem is that legislators are rarely inclined to grapple with an issue where the numbers are not significant enough to constitute a major votebank. It has been noted earlier that though Section 377 is there on the statute book, the so-called “unnatural sex” is rarely penalised.

That misses the point completely. Members of this community are extremely vulnerable to exploitation by society, which is known to discriminate against them, beside harassment by the law enforcement machinery using the section as a tool for exploitation in various ways.

The question of any sex except for procreation being unnatural may form the basis of ancient beliefs. But in today’s world, a person’s home is his castle, and a citizen’s right to privacy shouldn’t be invaded on any pretext, least of all in sexual matters. A comprehensive early hearing on Section 377 is possibly just what the doctor ordered.