Apex court does well to uphold Section 377
Now that the Supreme Court has dismissed petitions which sought a review of its December 11, 2013, judgement on the constitutionality of Section 377 of the Indian Penal Code, the matter should ideally come to a close. However, this is unlikely given that the community of lesbians, Gays, Bisexuals and Transexuals, which is most affected by the decision, will continue to seek to ‘remedy’ the situation. Following Tuesday's order, the legal options at its disposal are limited — a curative petition can be filed but legal experts agree that this is not a promising plan of action. The other route goes through Parliament. However, in the run-up to a general election, it is unlikely that the beleaguered Congress-led UPA regime will take any action on this sensitive issue. For now, therefore, Section 377, which criminalises sexual acts “against the order of nature”, stands. The Supreme Court decided that there was no reason to review the previous order which, it reiterated, was in keeping with the law of the land. last year, a two-judge Bench of the Supreme Court, comprising Justices GS Singhvi and SJ Mukhopadhaya, had overturned the Delhi High Court's 2009 ruling to strike down Section 377 as unconstitutional. In doing so, the apex court made clear that the law was not ultra vires to Articles 14 and 15 of the Constitution — contrary to what the High Court had held. Instead, Justice Singhvi rightly pointed out that Section 377 “merely defines the particular offence and prescribes punishment for the same which can be awarded if, in the trial conducted in accordance with the provisions of the Code of Criminal Procedure..., the person is found guilty”. In this context, it is especially relevant to note that the Supreme Court had also underlined the fact that Section 377 “does not criminalise a particular people or identity or orientation” but only “identifies certain acts, which if committed, would constitute an offence”.
Amidst the din created by gay rights activists, these crucial legal nuances have been overlooked. Similarly, there has also been no acknowledgement of the fact that Section 377 was designed to protect minors and women against “coercive, non-consensual sexual acts”, as highlighted by Justices Singhvi and Mukhopadhaya. This is because Section 377 does not specifically refer to gay sex per se but focuses on “unnatural sex” which is undefined and open to interpretation.
Finally, as this issue continues to gain traction, the Government will have to eventually take a stand. The UPA regime, unfortunately, has dithered on Section 377, and spoken in different and often contradicting voices. The Union Ministry of Health and Family Welfare had opposed Section 377 while the Union Ministry of Home Affairs had not too long ago supported it. Meanwhile, Attorney General GE Vahanvati sought to take the middle road. He suggested that Section 377 remain in the books but with the proviso that all consensual sexual activity between adults is excluded from the Section. Most recently, the Union Government was one of the petitioners seeking a review of the December 11 judgement. If seems like the Government was hoping that the judiciary would rescue it from its dilemma. But it still has to take the final call.