Page 11 - English Tehelka Issue 6 - March 31, 2018

coLumn LEGAL

Section 377: Historical the petitioners from accessing the

unremunerated rights which are
wrong needs correction held flowing from Article 21 of the
Constitution of India.”
The petitioners further empha-
sized that “… the ability to be open
A three-judge bench is set to re-examine the constitutional validity of Section 377, with one’s friends, family, col-
in focus that must be nullified with the changing milieu worldwide in the interest of the leagues and employees about an
integral and intrinsic part of one’s
perpetually harassed communities of sexual minorities
Ashok kumAr life and personality, is fundamental
to unfolding the full potential of the
YAdAv n the wake of the landmark rul- to revisit its 2013 order which not only personality of any human being.
ing of the nine-judge bench of revived Section 377 but also re-crim- Being open about one’s sexual ori-
the Supreme Court elevating the inalized gay sexual relations. Accord- entation is essential to the pursuit of
Managing Editor of ‘right to privacy’ to the level of ingly, the three-member bench headed personal and professional success
Synergy Media. He is a fundamental rights, Section 377 of by then Chief Justice of India T.S. Thakur and happiness.”
Civil Servant-turned- I the Indian Penal Code, a prog- issued notice to the Centre seeking its The unanimous ruling of the
Legal Consultant, eny of the colonial-era Buggery Act of response to a writ petition filed by five nine-judge bench contained strong
Political Analyst and 1533, appears set for a total revamp. The members of the LGBTQ communities words pertaining to the 2013
a Columnist. He is impugned provision which criminal- that had accused the police of perpetual verdict of the apex court which had
presently working on izes sexual activities which are “against stalking. upturned the Delhi High Court’s
a book the order of nature” is on the radar of Taking the matter still further, last niche-carving judgment. “Privacy
the apex court. The judicial initiative month, a three-judge bench of cur- includes at its core the preservation
has pumped in buoyancy among the rent Chief Justice of India Dipak Misra of personal intimacies… and sexual
lesbian, gay, bisexual, transgender and and Justices AM Khanwilkar and DY izing gay sex “… does not suffer from ist Sunil Mehra, restaurateur Ritu orientation,” the court said.
queer (LGBTQ) communities known for Chandrachud referred a bunch of eight the vice of unconstitutionality”. Dalmia, hotelier Aman Nath of the The apex court’s 2013 verdict
practising their own sexual preferences. curative petitions to a five-member Section 377 enacted by the British Neemrana chain, and Ayesha Kapur, was obviously retrograde because
constitution bench, seeking to de- in 1860 terms consensual anal sex a psychology graduate. “What is it resurrected an obsolete provision
How the Supreme Court erred criminalise consensual sex among an “unnatural offence” and pro- natural to one may not be natural to that breathed on Victorian notions
With an epoch-making judgement LGBTQ adults. It observed that the 2013 vides punishment equivalent to the other. But the said natural and of morality. It failed to appreciate
delivered in July 2009, the Delhi High judgment appears to have impaired the that for the offence of rape under sexual orientation and choice can- that even the Buggery Act of 1533
Court removed Section 377 from the sexual preferences of individuals. It also Section 376. It even outlaws oral sex not be allowed to cross boundaries from which Section 377 was culled
statute book which was, however, ulti- took cognizance of the ratio decidendi of between man and woman, while of law but confines of law cannot had itself been repealed way back
mately reversed by the SC on December another judgment according the right holding that only penile-vaginal trample or curtail the inherent right in 1828. Strangely, it also held there
11 2013, declaring that amending or to privacy the status of a fundamental sex was not “against the order of embedded in an individual under was no need to capsize Section
repealing the IPC provision should be right, seemingly reflecting the freedom nature”. Article 21 of Constitution either,” 377 in view of there being only “a
A three-judge bench headed by
The ‘right to a matter better left to the wisdom of of sexual orientation. CJI Dipak Misra observed that “… held the judges. minuscule fraction” of homosexuals
in India.
After the SC’s privacy judgment, ac-
Parliament.
privacy’ verdict Koushal versus NAZ Foundation, the tivists and lawyers working for LGBTQ taking all aspects in a cumulative A way forward sexuality, the SC clearly shredded
While adjudicating Suresh Kumar
While re-criminalising homo-
communities prepared a robust case
On the phraseology of section 377
manner, we are of the view that the
has accorded SC bench of Justices GS Singhvi and for safeguarding the rights of sexual decision in Suresh Kumar Koushal’s which criminalises “carnal inter- the constitutional jurisprudence on
yet another SJ Mukhopadhaya intriguingly not minorities. Noted activist Gautam Bhan case requires reconsideration”, and course against the order of nature”, freedom of expression and set the
the bench said “… determination of
only validated the British-era provi-
accordingly referred the matter to
clock backward. Interestingly, the
said SC’s appraisal of the right to privacy
opportunity to sion but also inverted the 2009 verdict as an offshoot of dignity and equality, a larger bench to be constituted by the order of nature is not a constant two-judge bench merely washed its
the judiciary to which had held Section 377 violative of particularly in the case of LGBTQ rights, the CJI. The bench further noted phenomenon. Societal morality hands off while passing the buck to
changes from age to age.” Besides,
the Parliament to take a call on the
that “…a section of people or indi-
was a step forward. “It reaffirms the
Articles 14, 15 and 21 of the Constitution.
reclaim its role A review against the 2013 decision was Delhi High Court judgment about reflec- viduals who exercise their choice Section 377 also punishes sexual issue. But the privacy verdict has,
as the ultimate also dismissed and a curative petition tive sexuality within the framework of should never remain in a state of intercourse with animals. But the however, accorded yet another op-
portunity to the judiciary to reclaim
moved thereafter is still pending in the
fear…” since the societal morality
SC made it clear that it will not go
constitutionality,” commented Prashant
custodian of Supreme Court. Yadav, a senior criminal lawyer. keeps on changing from age to age. into that aspect after the petitioners its role as the ultimate custodian
The order to review the 2013 rul-
the rights of Protector of rights Breaking the colonial shackles ing came on a 2016 petition filed by submitted that they were also not of the rights of the vulnerable in-
pressing this. The petitioners con-
dividuals even if they numerically
vulnerable On August 24 last year, the SC while In 2013, when the SC reversed the Navtej Singh Johar, a Bharatnatyam tended that section 377 “… infringes constituted a “miniscule fraction”.
their right to sexuality and also
Delhi HC’s 2009 verdict, it held that the
dancer honoured with the Sangeet
inventing the ‘right to privacy’ as yet

citizens another fundamental right also agreed 153-year-old IPC provision criminal- Natak Akademi award, journal- has a cascading effect of barring letters@tehelka.com
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10-11 Column-Ashok Yadav.indd 2-3 14/03/18 4:57 PM