Supreme Court Issues Notice to the Government On Section 377

The Supreme Court on Monday issued a notice to the Union Government regarding a plea on seeking to quash section 377 of the Indian Penal Code (IPC). This particular provision of the IPC has been criticised for denying the LGBTQ community basic human dignity. The provision has been termed a colonial legacy insofar that it was introduced in the IPC drafted by Macaulay in 1860. While several supporters of this penal provision cite 'Indian culture' as a reason for doing so, the fact remains that penalising same sex relationships is a colonial construct. The Supreme Court at present has several petitions before it regarding section 377. First and foremost is a curative petition filed by Naz Foundation on the Supreme Court's Judgement. Among these are several petitions filed by public personalities. The present petition on which the Supreme Court issued notice to the Union Government was filed by Keshav Suri, Executive Director of Lalit Hotels.

The provision states; “[w]hoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 152[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” The explanation provided states that “[p]enetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.” The irony of course is that same sex relations often occur in prison, but are not often spoken about.

The issue of section 377 came to the fore in the Naz Foundation case. The petitioners then sought to decriminalise section 377. The Delhi High Court passed an Order to that effect, however, the Supreme Court overturned the High Court's Order. The Judgement of the Supreme Court was criticised for one reason that it sought to equate the LGBTQ movement with aping the west. However, if for any reason the Court could have declined decriminalising the provision, it should have been for the part where it mentioned carnal intercourse with an animal. The only basis is that an animal is unlikely to give informed consent.

The issue with section 377 according to Alexander Bubb in an article in the Economic and Political Weekly (EPW) titled 'Blustering Sahibs and Section 377' the main issue the more conservative elements have with section 377 lies in the fact that homosexuality challenges traditional gender roles. Given that masculine manifestations of 'Indian culture' have come to the fore, arguments against touching 377 in any significant way rely on the argument of culture – despite homosexuality being an established fact that Sanskrit literature has acknowledged. Animesh Sharma also writing for the EPW in an article titled 'Section 377: No Jurisprudential Basis' criticised the Judgement on the basis that it assumed a regressive view of law and morality. He argued that jurisprudence in other common law countries has undergone a shift in the way the interplay between law and morality is perceived. In this respect he cited the debate between H. L. A. Hart and Lord Devlin. Devlin had argued that society is held together by a common morality and any deviance is immoral. However, Hart argued that once the basic elements of a civilised society are established (liberty, safety and protection) it enabled individuals to deviate from societal morality without causing a complete breakdown. Thus, the role of morality is diminished.

It will be interesting to see how the Union Government will respond to the notice considering the current machismo infested Hindutva ideology. Another interesting outcome in the current petition is that the former Attorney General, Mukul Rohatgi is representing Suri. Apart from the fact that many of the petitioners belong to a class of people who have either received awards from the government for artistic excellence or are a part of the business executive class.