Section 377: Judicial Under-reach or an Idea Whose Time Hasn't Come Yet

The recent Supreme Court decision, upholding Article 377 of the Constitution and referring the matter to the legislature for action ‘deemed fit’ has come under severe criticism.

Published: 22nd December 2013 12:00 AM  |   Last Updated: 21st December 2013 12:42 PM   |  A+A-


The recent Supreme Court decision, upholding Article 377 of the Constitution and referring the matter to the legislature for action ‘deemed fit’ has come under severe criticism. The English TV channels particularly have been shrill at the alleged ‘abdication’ by the apex court of its legitimate functions in not upholding the ‘fundamental’ right of individuals to ‘deviant’ sexual behaviour. Usually the court is pilloried for ‘over-reach’—damned if you do, damned if you don’t.

Clearly, the rights of a type of minority among the populace are involved. But, is there a ‘fundamental’ right? The court has apparently ruled that it is not. Be that as it may, does the issue have only a legal dimension? Isn’t society at large involved? Isn’t Parliament as the representative of the public interest connected with the issue? Aren’t there major societal implications relating to social order, public morality and associated aspects? The way the matter has been projected by the media gives the impression that it is uni-dimensional.

The issue is not narrow or isolated in the social context. It has direct linkages with ‘women’s emancipation’—role of women in society, law and order and security issues, common civil code, property rights, same-sex marriage, definition of molestation, adultery laws etc. The norms in India approve of sex only within a marital context—partly hypocritical and riddled with exceptions as this may be. Even ‘prostitution’, which is ‘consensual’, is circumscribed by restrictions and arguably covered as crime by recent amendment to CrPc, and does not command social approval. In the US, where there is near-equality between the sexes (where the suffragette movement started in the 19th century), the concept of ‘family’ is quite different than what obtains in India. In a country with great restraint on the movement and behaviour of women, particularly in our small towns and villages, as well as cities—indeed much of India—one has to be careful before tampering with individual elements in the totality of the sex relations matrix; new forces should not be let loose without deliberation and consideration. Will our ‘decency’ laws permit scantily clad women in public spaces? Can we replicate the summer dress-code, indeed near-nudity say of Mediterranean resorts in our beaches, as also in our cities and towns or villages, in the name of ‘modernity’? The social practices in Western countries are quite different from those of the family values in India.

This is not a pure legal issue, nor only a theological debate—this is a proposed departure from established social order in India; to be encouraged, however legally sound and proper, only after careful deliberation and in a gradual manner. The behaviour, mores and social practices, which prevail predominantly in a segment of urban upper-middle class, is not necessarily easily and smoothly transplantable in mainland India, particularly Bharat.

Comparisons have been made with Germany, US, UK and other developed countries to suggest how ‘backward’ our legal thinking is in this regard. Indeed, the TV shows have ridiculed the ‘medieval’ mindset, questioning whether India is in the same league as Saudi Arabia, Qatar and a number of other ‘backward countries’. Whatever the TV anchors may like to project, the Indian social and cultural standards are quite different from those of Western countries—one need not necessarily rue this; indeed this may be India’s strength.

Apart from strong cultural aspects, we need to remember that in a hot poor country, boys sleep in dormitories, semi-clad; men at work in field projects often sleep in the same space—six or eight to a room; without spelling out the details, there could be significant impact on social behaviour all over the country. Article 377 is in the context of certain sexual relations norms in the country, with penalty attached for deviation—any casual variation, even signalling that ‘consensual’ arrangements are legal, could have significant consequences in the countryside. This is an issue that is relevant even in our rural schools, where the lives of children, many not in a position to complain, could be adversely impacted. Let us not forget that farm labour men sleep in the open in many parts of India; and in urban chawls, men are packed together in small space. The very concept that ‘deviant’ sexual behaviour is officially sanctioned can have far-reacting impact in our society.

All that is ‘modern’ or accepted practice in Western countries need not automatically be acceptable in India. While we compare the ‘rights’ of those in Western world, what is the status of the average Indian—can he live with individuality or dignity today? One cannot be against ‘progress’ or ‘modernity’, but these concepts are to be tempered with current realities in the subcontinent. Our own social structures have to develop at our own pace.

The court has not ordained that 377 cannot be repealed or amended. Note that 377 has many aspects beyond relationship between ‘consenting adults’. The court has merely referred this matter to the representatives of the people. There needs to be broad popular consensus, acceptance among the population that 377 could be amended to decriminalise consenting same-sex relations. One would surmise that India is not ready for this at this stage, not at least for the next couple of decades.


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