In the wake of the landmark ruling of the nine-judge bench of the Supreme Court elevating the ‘right to privacy’ to the level of fundamental rights, Section 377 of the Indian Penal Code, a progeny of the colonial-era Buggery Act of 1533, appears set for a total revamp. The impugned provision which criminalizes sexual activities which are “against the order of nature” is on the radar of the apex court. The judicial initiative has pumped in buoyancy among the lesbian, gay, bisexual, transgender and queer (LGBTQ) communities known for practising their own sexual preferences.
How the Supreme Court erred
With an epoch-making judgement delivered in July 2009, the Delhi High Court removed Section 377 from the statute book which was, however, ultimately reversed by the SC on December 11 2013, declaring that amending or repealing the IPC provision should be a matter better left to the wisdom of Parliament.
While adjudicating Suresh Kumar Koushal versus NAZ Foundation, the SC bench of Justices GS Singhvi and SJ Mukhopadhaya intriguingly not only validated the British-era provision but also inverted the 2009 verdict which had held Section 377 violative of Articles 14, 15 and 21 of the Constitution. A review against the 2013 decision was also dismissed and a curative petition moved thereafter is still pending in the Supreme Court.
Protector of rights
On August 24 last year, the SC while inventing the ‘right to privacy’ as yet another fundamental right also agreed to revisit its 2013 order which not only revived Section 377 but also re-criminalized gay sexual relations. Accordingly, the three-member bench headed by then Chief Justice of India T.S. Thakur issued notice to the Centre seeking its response to a writ petition filed by five members of the LGBTQ communities that had accused the police of perpetual stalking.
Taking the matter still further, last month, a three-judge bench of current Chief Justice of India Dipak Misra and Justices AM Khanwilkar and DY Chandrachud referred a bunch of eight curative petitions to a five-member constitution bench, seeking to decriminalise consensual sex among LGBTQ adults. It observed that the 2013 judgment appears to have impaired the sexual preferences of individuals. It also took cognizance of the ratio decidendi of another judgment according the right to privacy the status of a fundamental right, seemingly reflecting the freedom of sexual orientation.
After the SC’s privacy judgment, activists and lawyers working for LGBTQ communities prepared a robust case for safeguarding the rights of sexual minorities. Noted activist Gautam Bhan said SC’s appraisal of the right to privacy as an offshoot of dignity and equality, particularly in the case of LGBTQ rights, was a step forward. “It reaffirms the Delhi High Court judgment about reflective sexuality within the framework of constitutionality,” commented Prashant Yadav, a senior criminal lawyer.
Breaking the colonial shackles
In 2013, when the SC reversed the Delhi HC’s 2009 verdict, it held that the 153-year-old IPC provision criminalizing gay sex “… does not suffer from the vice of unconstitutionality”. Section 377 enacted by the British in 1860 terms consensual anal sex an “unnatural offence” and provides punishment equivalent to that for the offence of rape under Section 376. It even outlaws oral sex between man and woman, while holding that only penile-vaginal sex was not “against the order of nature”.
A three-judge bench headed by CJI Dipak Misra observed that “… taking all aspects in a cumulative manner, we are of the view that the decision in Suresh Kumar Koushal’s case requires reconsideration”, and accordingly referred the matter to a larger bench to be constituted by the CJI. The bench further noted that “…a section of people or individuals who exercise their choice should never remain in a state of fear…” since the societal morality keeps on changing from age to age.
The order to review the 2013 ruling came on a 2016 petition filed by Navtej Singh Johar, a Bharatnatyam dancer honoured with the Sangeet Natak Akademi award, journalist Sunil Mehra, restaurateur Ritu Dalmia, hotelier Aman Nath of the Neemrana chain, and Ayesha Kapur, a psychology graduate. “What is natural to one may not be natural to the other. But the said natural and sexual orientation and choice cannot be allowed to cross boundaries of law but confines of law cannot trample or curtail the inherent right embedded in an individual under Article 21 of Constitution either,” held the judges.
A way forward
On the phraseology of section 377 which criminalises “carnal intercourse against the order of nature”, the bench said “… determination of the order of nature is not a constant phenomenon. Societal morality changes from age to age.” Besides, Section 377 also punishes sexual intercourse with animals. But the SC made it clear that it will not go into that aspect after the petitioners submitted that they were also not pressing this. The petitioners contended that section 377 “… infringes their right to sexuality and also has a cascading effect of barring the petitioners from accessing the unremunerated rights which are held flowing from Article 21 of the Constitution of India.”
The petitioners further emphasized that “… the ability to be open with one’s friends, family, colleagues and employees about an integral and intrinsic part of one’s life and personality, is fundamental to unfolding the full potential of the personality of any human being. Being open about one’s sexual orientation is essential to the pursuit of personal and professional success and happiness.”
The unanimous ruling of the nine-judge bench contained strong words pertaining to the 2013 verdict of the apex court which had upturned the Delhi High Court’s niche-carving judgment. “Privacy includes at its core the preservation of personal intimacies… and sexual orientation,” the court said.
The apex court’s 2013 verdict was obviously retrograde because it resurrected an obsolete provision that breathed on Victorian notions of morality. It failed to appreciate that even the Buggery Act of 1533 from which Section 377 was culled had itself been repealed way back in 1828. Strangely, it also held there was no need to capsize Section 377 in view of there being only “a minuscule fraction” of homosexuals in India.
While re-criminalising homosexuality, the SC clearly shredded the constitutional jurisprudence on freedom of expression and set the clock backward. Interestingly, the two-judge bench merely washed its hands off while passing the buck to the Parliament to take a call on the issue. But the privacy verdict has, however, accorded yet another opportunity to the judiciary to reclaim its role as the ultimate custodian of the rights of the vulnerable individuals even if they numerically constituted a “miniscule fraction”.
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olations have returned to the border in Kashmir with such frequency and ferocity.
White noise of TV news spells doom for media
While the newspapers, particularly the mainstream media and the multi-edition Hindi and regional language newspapers, have by and large maintained reasonably good standards of reporting, it is the dumbing down of the electronic media that is shocking. In this field the English news channels are only a step behind the vernacular ones and at times even outdo the other.
The villain-in-chief is no other than Arnab Goswami. Thanks to his marketing and abrasive style, his theatrics dominate the discussions at social gatherings. One rarely comes across anyone liking his style or appreciating his journalism. Even as most professional journalists don’t consider him one from their tribe, he is the one who is taken as an example or yardstick for the declining standards of journalism.
As dyed-in-the-wool ‘traditional’ journalists like me, who have been in print journalism for long, it is becoming increasingly difficult to defend the electronic media. As it is, almost all social conversation, and even among the professionals, boils down to these so-called television news channels. There is hardly any reference to the quality journalism still practiced in large sections of print journalism and specifically in the mainstream media.
News through the social media and digital platforms is taking baby steps in the country and most of the news websites are in the development stage. At times, the ‘viral’ news also turns out to be fake news. That’s mainly because there are no gatekeepers and people blindly forward whatever comes their way. Recently there was a campaign to get ‘signatures’ or endorsement for building a Ram Temple in Ayodhya as the Supreme Court “had asked for a referendum”. The post said that Muslims had voted for a masjid at the site in large numbers and challenged the Hindus to do it in large numbers. Obviously there was no such reference from Supreme Court or that it had refused to adjudicate in the dispute. There are, however, credible news websites but few take the trouble to cross check the facts.
One is not shocked to find headlines like “Kya gaye ka doodh pite hain aliens (Do aliens drink cow’s milk)” or “Badalon mein dikhe bhagwan (God seen in clouds)”. Then there are anchors dressed in olive green uniforms talking of skirmishes at the border together with a sand model of the section.The latest example of the dumbing down of television news is the way almost all channels have covered the tragic death of the famous Bollywood actress Sridevi.
There is no doubt that the sudden death of a famous personality and that too at a comparatively young age makes news. Virtually everyone who heard about the tragedy received a shock and her death became one of the most discussed news stories. The circumstances and curiosity about the sudden death in a foreign land added to the fact that she was a heart throb due to her acting in dozens of Hindi and South Indian films. She was known for her dancing and acting skills. Although she had almost quit films for a decade and a half, she staged a comeback as an accomplished actor in the film English Vinglish and a couple of other films.
Thus, the curiosity over her sudden death was natural. However, the way most television channels went about covering her death was shameful. The initial reports about her death were sketchy but that did not prevent the channels from reaching ridiculous conclusions.
As the first reports had said that she had died due to a sudden heart attack, the so-called ‘experts’ as also news anchors put the focus on the alleged plastic surgeries she had undergone just to keep slim and keep her skin tight. There were speculations that she had undergone over two dozen such surgeries (some even claiming the exact figure of 27) and blamed her for poor diet and obsession with keeping slim.
The ‘experts’ said the sudden heart attack was a ‘lesson’ for others who did not lead a healthy lifestyle. Medical experts were all over the channels to affirm that frequent surgeries could do much damage and the ‘tendency’ to keep looking young and fit could lead to disasters such as in the case of Sridevi. But then as soon as news came from Dubai that she had accidentally drowned, these channels took an about turn and began focusing on her taking or not taking hard drinks. A self-proclaimed “close associate” disclosed that she used to take “mild drinks” like wine but never took “hard drinks”. It is not clear whether he thought those who take hard drinks must die and that there was nothing strange or unusual about it.The dozens of anchors and ‘experts’ then raised doubts on how anyone could drown in a bathtub. This led to conspiracy theories and suspicion at possible murder! The almost endless debate continued on virtually every news channels and the TV remote control was of little help. A section of social media did mock the priorities of television news channels even as so many other major events go unreported.
And the way they reported the death and the ‘mystery’ would go down in the annals of Indian television history as the most insensitive, shocking and disgusting coverage ever. One of the channels has one of its anchors pose near a bath tub with a glass of window in her hand. Another channel floated a photograph of the late actress in a bathtub.
The headline of one of the English channels was : “Was Jahnavi (Sridevi’s daughter) inconsolable after her mother’s death?” Another shared the dimensions of the bathtub at 5 feet in length and 13 inches in height. A leading Hindi channel showed the “Maut ka bathtub” while another asked “Kamra number 2201 me Kya hua” and yet other asked: “Kyun dinner date per lejana chahte they Boney Kapoor?”
The unease and irritation with news channels is growing and it would be a mistake on the part of their managements if they think such coverage would earn them more TRPs and consequently more revenue through advertisements. As a member of media community for nearly four decades, I find it impossible to defend such coverages even though I remain a strong votary for the freedom of the press. No wonder more and more citizens are turning towards credible digital media, including that managed by established newspapers, to get to real news developments. It’s time for television news channels to either mend their ways or look ahead for their own doom.
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