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Anachronistic law

It is ironic that there should be such a heated legal debate over a colonial-era provision in the criminal law that is anachronistic, discriminatory, and violative of the right to privacy and personal liberty. The Centre has spoken in contradictory voices in the case before the Delhi High Court challenging the constitutional validity of Section 377 of the Indian Penal Code — which punishes “carnal intercourse against the order of nature” with imprisonment of up to 10 years. While the provision does not specifically refer to homosexuality, it has been used to harass those with alternative sexual orientations and is manifest as an intolerant symbol of the unacceptability of gay behaviour. The affidavit filed by the National Aids Control Organisation has taken a rational and pragmatic view, arguing that Section 377 contributes to pushing gays into “hidden spaces” and impeding their access to health care and safe sex information. The affidavit, which raises the concern that eight per cent of the gay population is infected with HIV, reflects the position of Health Minister Anbumani Ramadoss, who has strongly pitched for the decriminalising of homosexuality. In contrast, the Home Ministry has appallingly equated homosexuality with “the crime of widow remarriage” while arguing for the retention of Section 377. For its part, the Law Ministry has distanced itself from the Home Ministry’s embarrassing affidavit, asked the court to ignore the Health Ministry, and claimed mystifyingly that scrapping the provision would “disturb the law and order situation.”

The Naz Foundation, the Delhi-based NGO that filed the public interest litigation, is not seeking the repeal of Section 377. It is only asking for it to be “read down” — in a manner that stops it from being applied to consensual sex between adults; its retention for non-consensual sex and child sex abuse is not in contention. The judiciary has shown a regrettable disinclination to interpret Section 377 progressively, but the gay community has taken heart from the support of the Health Ministry and the liberal intelligentsia. Two years ago, prominent citizens came forward to endorse a letter signed by author Vikram Seth for decriminalising homosexuality — the signatories included economist Amartya Sen, social activist Swami Agnivesh, freedom fighter Lakshmi Sahgal, and author Arundhati Roy. Anti-sodomy laws which explicitly or implicitly treat homosexuals as criminals have no place in a modern, liberal society. As Justice Albie Sachs noted while striking down the one in South Africa, the invalidation of such laws marks “an important moment in the maturing of open democracies, based on dignity, freedom and equality…”

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