[Columns] As We March On: Beyond the Section 377 judgment

Bar & Bench September 15 2018

Ishita Sharma 

September 6, 2018 marked a momentous day in the history of the Indian socio-legal ethos, after the Supreme Court of India, in the case of Navtej Singh Johar vs Union of India, decriminalized consensual intercourse between persons of the same sex.

Reversing its 2013 judgment of Suresh Kumar Kaushal vs NAZ Foundation, the Supreme Court struck down, in part, Section 377 of the Indian Penal Code, which criminalized same sex intercourse, thereby making India the 126th country in the world where homosexuality is not an offence. The judgment comes as a historic victory in the quest for fulfilling the promise of equal rights.

At the same time, it will be instructive to understand that the Legislature must respond rapidly in order to bring various other laws at par with what the judgment promises to the LGBTQ community. As Justice DY Chandrachud noted,

“…this case involves much more than merely decriminalising certain conduct which has been proscribed by a colonial law. The case is about an aspiration to realise constitutional rights. It is about a right which every human being has, to live with dignity. It is about enabling these citizens to realise the worth of equal citizenship.”

One of the most crucial questions is that of giving legal recognition to same sex marriages/civil unions. It might prove to be a sore point, as marriage in India is a matter of personal laws, deeply intertwined with religious beliefs of people. The laws recognize marriage to be a union of a man and a woman. Since homosexuality itself was illegal till the time of this judgment, the Special Marriage Act, 1954, which was enacted to provide a special form of marriage irrespective of the religious faith of either of the parties, stipulates heterosexual marriages alone.

To protect the equal rights of the LGBTQ community, the Legislature will also be faced with a plethora of challenging questions relating to adoption, maintenance, custody rights and inheritance. The Hindu Succession Act, which governs inheritance for Hindus, stipulates the widow/widower to be the legal heir of a man/woman dying intestate.

The Legislature may not be as willing as the Supreme Court to tread on this path, as such moves will entail backlash by various religious and socio-cultural communities. Factions of different religious communities may perceive changes to such laws as an attack on their beliefs. One can infer through past experience that the Legislature will be reluctant towards such fundamentally entrenched issues, fearing a loss of the vote bank.

Another area that demands a re-look now is the rape laws of the country. Presently, Section 375 of the IPC, which defines rape, is not a gender-neutral section. The criminal laws in India do not recognize that a man can be raped. Nor do they recognize that a woman can rape. Since the offence of rape is centered on the element of consent, it is not hard to fathom that men and women, both, can be subjects of the offence.

Furthermore, the legislators must also expand the scope of the section to include women as offenders. Even though non-consensual same-sex intercourse still remains punishable under Section 377, the quantum of punishment for rape is higher than that under Section 377. Furthermore, instances of aggravated offences viz. gang rape (Section 376D), causing death of the victim or leaving her in a permanent vegetative state (Section 376A) and instances of repeat offences (Section 376E) are not accounted for under Section 377.

This case has really given rights to a community that for decades has been marginalised and at the receiving end of prejudice and bias. Whilst the case has given substantive and crucial rights, it needs to be noted that rights cannot be seen in isolation of other substantive rights.

The above are a few of the concerns that need to be addressed with great speed and responsibility. The executive and legislative branches need to make sure that the judgement is followed in complete spirit and in its guiding principles. Without combined redressal, the judgement would lose some of it weight.

The judiciary has in the recent past, through this and the 2017 Puttaswamy judgment, paved the path for the quintessential values of liberty, dignity, individuality and equality. For the Parliament, which, term after term, session after session, failed to give these rights, the judgment presents a golden opportunity to show unwavering commitment to human rights.

To effectually bring in real changes in the lives of the LGBTQ community, as the Supreme Court pertinently recognized, we will have to “bid adieu to the perceptions, stereotypes and prejudices deeply ingrained in the societal mindset so as to usher in inclusivity in all spheres and empower all citizens alike without any kind of alienation and discrimination.”

Multiple segments of the society, including the Legislature, lawyers, teachers, public figures, will need to work together to bring in the inclusivity that people deserve, and the openness that India once represented.

The author is an Assistant Professor at OP Jindal Global University.

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