In The
Hindu
Don’t dither on Section 377, Jul 1 2009
Are the winds of change that seemed to be blowing through the corridors of the central government on the issue of ending legal discrimination against gay sex petering out? Hope that the infamous Section 377 of the Indian Penal Code would be either quickly repealed or suitably amended — raised when the Union Home Ministry boldly described it as an “absurdity in the present day” — have receded with the Law Minister, Veerappa Moily, announcing that the Centre was in no hurry to take such a step. Calls for a parliamentary debate to reach a ‘wider consensus’ on a basic issue of human rights and equal justice are nothing but an excuse to put off a hard decision on ending an obnoxious colonial-era provision that has absolutely no place in the statute book of a modern democratic and secular state. Section 377, which punishes “carnal intercourse against the order of nature” with imprisonment up to 10 years, is not specifically targeted at homosexuality. But by criminalising any penetrative sex that does not lead to reproduction, it has become a weapon in the hands of the police to harass those who have alternative sexual orientations. It also stands out as a symbol of 19th century intolerance.
Suggestions that Section 377 would be reviewed coincided with hundreds of members of the LGBT (lesbian, gay, bisexual, transgendered) community dancing and marching through the streets of five Indian cities last Sunday to mark the 40th anniversary of the Stonewall uprisings in New York, now a universal symbol of gay resistance to obscurantist oppression. What is clear is that the gay rights movement is slowly coming of age in India — emboldened by such developments as President Barack Obama’s promise to bring the “full spectrum of equal rights to LGBT Americans” and his administration’s decision to endorse a United Nations resolution calling for the worldwide decriminalisation of homosexuality. In an age where there is growing acceptance of the idea that LGBTs must be allowed to live in dignity and respect, it is shame that India cannot bring itself to legalise gay behaviour. It is time the United Progressive Alliance did the right thing by either repealing Section 377 or (as some social activists have proposed) amending it so that it excludes consensual sex between all adults, whether of the same sex or otherwise. Having promised to review this provision, the government must not give in to the pressure of religious fundamentalists, moral obscurantists, and others who argue that Indian society is not ready to accept such change. Especially on non-negotiable social issues, governments must lead public opinion — not tail its least enlightened strands or go for the lowest common denominator.
TOI
EDITORIAL COMMENT | Victory For Choice
3 Jul 2009, 0000 hrs IST
In a landmark judgement, the capital's highest court has struck down an archaic provision of the Indian Penal Code (IPC) which criminalises homosexuality. It has ruled that Section 377, in so far as it penalises gay sex between consenting adults, was in violation of fundamental rights. In effect, this means that gays, lesbians, bisexuals and transgenders cannot be hauled up anymore in the capital if they are adults, and engage in consensual sex. This is a welcome step forward. The criminalisation of homosexuality is a relic of the past, introduced by the British in 1861. By legalising homosexuality, the Delhi high court has restored the personal freedom and rights of homosexuals, guaranteed to them by the Indian Constitution.
Over the past few days, there has been a renewed debate over Sec 377. When law minister Veerappa Moily recently suggested that Sec 377 could be one of the many outdated laws that needed review, critics and advocates of this law were galvanised. The government was exhorted to give the anachronistic law a burial and usher in an era of greater individual rights. We have repeatedly urged the government in these columns to stop governing our personal lives, and that includes matters of sexual choice.
However, critics of homosexuality - some religious heads as well as self-appointed advocates of 'Indian culture' - kicked up a fuss. Their arguments - that homosexuality is unnatural, against Indian tradition, and that legalising it would lead to a spurt in HIV/AIDS cases - are neither scientific nor logical. If they wish they can exhort their followers to adopt certain sexual preferences, but they cannot argue that alternative preferences be outlawed by the IPC. One set of critics also argued that Sec 377 does not deal with adult homosexuality alone, which is a fact. The law provides cover against child abuse as well. However, we have other laws, like the one governing rape, which could be amended to deal with child abuse and rape committed against men.
As of now, this ruling is effective in Delhi alone. Since Sec 377 is on the concurrent list, states have a say in amendment or repeal of this law. However, this historic ruling could act as a catalyst, encouraging our legislators to shed their blinkers and take a more progressive view on the issue. In 21st century India, it is perverse to penalise adults for their sexual choices.
From the
Indian Express
377 steps
Posted: Friday , Jul 03, 2009 at 0410 hrs IST
The Delhi high court was for just a few moments on Thursday awash with tearful celebrations. Liberty is an incremental accomplishment and a grand step has just been taken, the gathered masses within and outside the court premises appeared to agree, as a two-judge bench of the court struck down a remnant of the 19th-century social code still on India’s statute books. Chief Justice A.P. Shah and Justice S. Murlidhar brought to an end years of contentious argument in the court by declaring discrimination on the basis of sexual preference an “antithesis of the right to equality”. They held that those parts of Section 377 of the Indian Penal Code that criminalised consensual gay sex between adults were violative of fundamental rights.
By placing their judgment on the pivot of constitutionally guaranteed fundamental rights, the judges have righted the debate on Section 377 to its legal core. Can a modern democracy intrude upon the private domain of consenting adults on the grounds of “moral indignation”? By framing it this way, the judges have cased their judgment in the very constitutional framework from which every Indian derives individual freedoms. In their words: “In the present case, two Constitutional rights — right to personal liberty and right to equality — relied upon are fundamental human rights which belong to individuals simply by virtue of their humanity, independent of any utilitarian consideration.” There is a need to linger longer on the wording of the judgment because the possibilities of appeal are already being articulated. In any case, the territorial implications of the judgment — that is, whether it applies outside of the Delhi high court’s jurisdiction — are automatically raised, and so the exact status of the read-down parts of Section 377 in different parts of India will have to be determined.
This is why the court’s asides to the Central government are
crucial. They cited the additional solicitor general’s submission that the courts refrain from encroaching on Parliament’s domain, and said that the judiciary is constituted as the “ultimate interpreter” of the Constitution. The judgment of the Delhi high court may not be the last word on the matter. But the government, whose ministers just last week retracted statements seen to be proactive on a re-look at Section 377, must read it for its enlightened constitutionalism.
----------
So it's open for them to come to a different decision. And there are hundreds of issues where high courts have differed with each other, and the Supreme court has to come in and resolve the issue.
Even on matters of the constitution ?
The Centre, the Congress and the BJP played safe and declined immediate comment — law minister Veerappa Moily confined himself to saying “we need to examine the details of the judgment.
The Samajwadi Party, which has considerable support among the minorities, opposed the order. The CPM supported decriminalisation.
The battle had brought all shades of prejudices out into the open. Hardliners such as B.P. Singhal joined issue in court, so did the little-known JACK -- the Joint Action Committee, Kunnur. JACK’s Purshottam Mulloli now plans to go to the Supreme Court against the high court judgment, as do many religious groups.
Till then, the beleaguered community can breathe easy.
Source
