Endgame for Section 377?

The guillotine has fallen on the right of men to unilateral divorce by mere pronouncement in one go. It is a reflection of the failure of politics in India, and the pusillanimity of the political class that is its custodian, that the practice had the long life that it enjoyed in a secular republic. And even though it is disappointing that none of the judges came to the conclusion of the unconstitutionality of triple talaq via the path of equal rights — in this case of India’s women — it is yet the case that the highest court of the land has pronounced a negative verdict on the practice. Rulings by the Supreme Court can have significant spread effects.

Fodder Points for Mains:

  • Even when rulings in one case may not directly impact those in other areas, they have the potential to change behaviour across society.

  • Thus, activists see the ruling against triple talaq as generally empowering women among India’s Muslims.

  • Similarly, the ruling that has closely followed it in time, namely the one upholding privacy as a fundamental right of the citizen under the Constitution, is believed to have major implications for the lives of Indians.

  • We can see immediately that it stalls the incipient rise of the surveillance state.

  • But it has been suggested that it has the potential to impact the Indian state’s regulation of sexual relations. In particular, it has been suggested that the ruling has a bearing on the constitutional validity of Section 377 of the Indian Penal Code (IPC) which criminalises acts “against the order of nature”.

  • In the first instance, this immediately devalues by association the homosexual condition, a historical peeve of European Christianity.

  • It has implications for Section 377 as no longer can sex acts in private be overseen by law. While this may at first blush appear to be a tenable interpretation, it is not an argument that is made by activists for gay rights.

  • Incidentally, it must be said that this group includes a large number of Indians who are not in any way circumscribed by Section 377 as the fight for sexual equality is not spearheaded by gay men.

Why is the argument against Section 377 not to be based on the right to privacy but to be premised instead on the idea of the right to equality before the law?

  • While privacy is of paramount importance, in itself it cannot be the clinching argument in the context. After all, do individuals have the right to violence in the privacy of their homes?

  • We may well agree with a man that his home is his castle, and therefore beyond the invasive remit of the state, but we are unlikely to agree with his right to domestic violence.

  • He has no right to subjugate his spouse through violence, not even in the privacy of his home. The case against Section 377 must be based on the argument that it is arbitrary in proscribing all but the ‘missionary position’ in intercourse. What the Indian law as it stands does is to violate the right to non-discriminatory treatment of the LGBT community who invariably reject this position.

  • The NALSA judgment of 2014 is a landmark one in that it upheld the right to choose one’s sexual orientation. However, it did not go far enough to call for a repeal of Section 377.



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