The Indian lawmakers seem to have abdicated their constitutional responsibility by not accepting the Supreme Court’s suggestion that Parliament should change Section 377 of the Indian Penal Code if it thought decriminalising same-sex relationships by consenting adults was good for society. Instead of doing so, as Congress President had promised in her first reaction to the Supreme Court’s verdict on the provision, it has tried to shoot from the apex court’s shoulders by filing a review petition.
The Supreme Court’s judgment is quite clear. It did not find Section 377, which makes sex against the order of nature a punishable offence, unconstitutional. After all, it has been on the statute book for over a century. What it struck down was the Delhi High Court’s verdict which decriminalised gay sex. In doing so, it made it abundantly clear that it was for Parliament to decide whether the law should be retained or not.
The history of criminal law enforcing social norms is complex. Many social norms that the law tolerated in the past have been declared punishable offences. Others that were once considered abhorrent are getting legitimised. The final call as to how the law should be shaped should be with the legislature and not the judiciary.
That is exactly what the government wants to avoid. Whatever be the stand of a section of our Westernised liberal elite on homosexuality, a large majority of the people in India consider it abominable and against the ethos of Indian culture. Most religious organisations and some political parties such as the BJP are opposed to any tinkering with Section 377. Even in the ruling Congress, a large section is opposed to decriminalisation of gay sex.
The voices for legalising consensual homosexuality are not new. When they got loud enough in the 1960s, the government had referred the issue to the Law Commission. In its report to the government on June 2, 1971, the commission said: “It appears to us that, in the highly controversial field, the only safe guide is what would be acceptable to the community. We are inclined to think that Indian society, by and large, disapproves of homosexuality and is strong enough to justify it being treated as a criminal offence even where adults indulge in it in private.” The commission had recommended that the punishment for offences under Section 377 be reduced to a maximum of two years. Successive governments slept over this recommendation.
This view started changing gradually. In its 172nd report dated March 25, 2000, the 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.”
The fact that successive governments have failed to change Section 377 for 13 years after the Law Commission’s categorical recommendation only highlights their lack of political will. The Supreme Court can’t be faulted for believing that this shows that “Parliament, which is undisputedly the representative body of the people of India, has not thought it proper to delete the provision”. Such a conclusion is only strengthened by the ruling Congress party’s reluctance to push a bill deleting Section 377 IPC in Winter Session of Parliament.