SC Ruling on Article 377 Shows Intolerant Mindset

Published: 15th December 2013 06:00 AM  |   Last Updated: 21st January 2014 01:43 PM   |  A+A-

Last week has been replete with excitement. At first it was extension of Tarun Tejpal’s judicial custody by 10 days and provision of a special cell for him. Next, persistent calls for resignation of Justice A K Ganguly as Chairman of West Bengal Human Rights Commission and his refusal to oblige, with former Speaker Somnath Chatterjee supporting him. The centre stage was the Supreme Court’s judgment on Section 377 of IPC which inter alia penalises homosexual relations. The Supreme Court reversed the well-reasoned and enlightened judgment of the Delhi High Court. Let us be clear about what the high court ruled. It did not strike down Section 377 in its entirety. It did not pronounce upon the validity of same-sex marriage, far less encouraged the same. It read down Section 377 and made its penal provisions inapplicable to consensual homosexual activity in private between adults of 21 years. It decriminalised the Section by the accepted judicial technique of reading down. The high court judgment recognised harassment of the gay community by the police, the looming threat of prosecution which could be avoided by yielding to extortion and bribes to the police. The Supreme Court judgment discloses an intolerant mindset and which is also insensitive to the real problems of those with a different sexual orientation for which they are not to be blamed nor branded. The reasoning that there is no proof of prosecution of members of the gay community and that it is a miniscule of the total Indian population is specious. Surely judicial notice can be taken of the pervasive harassment and the discriminatory and humiliating treatment meted out to the gay community. I am sad that this disappointing judgment was delivered on the eve of his retirement by Justice GS Singhvi whom I admire greatly for his sturdy judicial independence. Perhaps it was shrewd judicial strategy of Justice Singhvi of putting the ball in Parliament’s court which can by a simple amendment of Section 377 decriminalise homosexual activity on the lines of Delhi HC judgment. It is reassuring that Mrs Sonia Gandhi has endorsed the high court judgment and described Section 377 as archaic. UPA Cabinet ministers, including P Chidambaram, have criticised the Supreme Court judgment. It is unlikely that other political parties will oppose amendment of Section 377 except possibly the Samajwadi Party. BJP’s official stand is not clear so far. Regrettably there are some who believe like Baba Ramdev that homosexuality is a disease. This diseased mindset has to be jettisoned through judicial route by seeking reconsideration of the judgment by a larger bench, or by the legislative route of amending the section. In either case, time is of the essence and this shameful blot on our system must be removed at the earliest.

And add to the prevailing excitement, the uncertainty about which party will form the government in Delhi or whether President’s Rule is inevitable.

Regrettable Pakistan Censorship: It is regrettable that a Pakistani court has stopped the country’s TV channels from screening foreign films, serials and television shows, especially Indian content. The Lahore High Court passed the order on a petition contending that under Pakistani rules, movies that are shot completely in India and are sponsored by an Indian cannot be screened in the country. Lahore High Court has ruled that Indian films and television serials are included in the ‘negative list’ under the current bilateral trade regime. Indian movies and film songs have a great appeal to the people of Pakistan and foster better relations between the two countries. The so-called negative list relating to Indian moves should be scrapped. We welcome Pakistani artists and must continue to do so despite call by the Shiva Sena to send back Pakistani artists. It is heartening that despite order of the Lahore High Court, television operators across Pakistan are continuing to show Bollywood films and Indian TV content.

Sorabjee is a former Attorney General of India


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