Kamayani Bali Mahabal aka Kracktivist
Why did UPA government sleep on decriminalisation of Sec 377
Section 377 of the Indian Penal Code (IPC), 1860, that criminalises gay sex has remained in the statute book for over 150 years. The Delhi High Court had simply asked Parliament to have a relook at it and till then had only decriminalised gay sex between consenting adults in private. Section 377 IPC was not struck down wholly.. Last year the Supreme Court (SC) has also tossed the ball into Parliament’s court, but the interim 1elief the Delhi HC had granted has been denied. Its an interim relief since the interim period till Parliament should have chosen to amend the law ought not to have been more than a few months from July 2, 2009, when Sadly, the government chose not to act for more than four years. For any legislative business to be transacted, it is for the government of the day to swing into action. Reflecting complete policy paralysis, two wings of the government, the health ministry and the home ministry, took a diametrically conflicting stand on the issue.
The SC judgment reflects that a law officer of the government, on behalf of the ministry of home affairs, referred to the affidavit filed before the Delhi HC wherein the government had opposed decriminalisation of homosexuality and argued that in its 42nd report, the Law Commission had recommended retention of Section 377 IPC because societal disapproval thereof was very strong.It was categorically argued by the government’s law officer that the legislature had decided not to delete it and it was not for the court to import extraordinary moral values and thrust them on society.
The prime reasoning reflected in the judgement of the apex court is flawed. The SC’s observation that only a fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders and, therefore, Section 377 cannot be declared ultra vires of constitutional provisions is contrary to basic tenets of minority rights. UPA government rushed to trash the Supreme Court’s judgment upholding the validity of Section 377 IPC but have failed to act on the Law Commission’s 13-year-old recommendation for its deletion.
The law commission recommended changes in Section 375, IPC and scrapping of Section 377. “In the light of the change effected by us in Section 375 IPC, we are of the opinion that Section 377 deserves to be deleted. After the changes effected by us in the preceding provisions (Sections 375 to 376E), the only content left in Section 377 is having voluntary carnal intercourse with any animal. We may leave such persons to their just deserts.”
Why did UPA government chose not touch Section 377, despite a bunch of petitions against it pending in the Delhi High Court and later in the Supreme Court for 12 years. ? The Commission recommendation gathered dust in the law ministry, there was a slew of amendments carried out by the government to make provisions in IPC more stringent in the aftermath of the December 16 fatal gangrape case and focused on sexual offences, it did not change anything in Section 377. That was evidently the will of Parliament.
It ‘s clear the Government acknowledges the perils of contradictions and opposition not only from religious organisations and opposition parties but also from within its own party and allies, and with the next general election near, does not want to rake up another hullabaloo.After the adoption of the IPC in 1950, around 3 0 amendments have been made to the statute, the most recent being in 2013 which specifically deals with sexual offences, a category to which Section 377 belongs.
The UPA government wants to run with the hare and hunt with the hounds, and that is why it is urging the court to decide. Parliament has often criticised the Supreme Court for “judicial overreach” and “judicial law making”. And yes, under the Constitution, the right place to make or change a law is Parliament; Section 377 should be no exception.
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