Section 377: A 19th century law at odds with ground reality

MUMBAI: The Supreme Court verdict upholding an archaic British law criminalizing homosexuality has resulted in the legal equivalent of an Alice-in-Wonderland situation.

As of today, according to the law of the land, homosexuality is a crime that carries a maximum punishment of life imprisonment. So how come all those who are gay and have spoken openly about it in the newspapers, on TV and out on the streets in protest against the SC judgment, have not been immediately arrested for practising sexual acts that are against the law? After all, they have admitted to a ‘crime’ that carries a life sentence.

The absurdity of the situation shows the clear contradiction between the ground reality of modern India and a legal system that’s stuck in nineteenth century Britain.

Legal experts say the contradiction shows the manner in which India’s legal system is devaluing itself — for why have laws you know you are not going to implement at all times? How can there be any police discretion when it comes to dealing with an ‘offence’ under the IPC that carries a life sentence.

“The prevailing situation is one which no society that is governed by the rule of law should tolerate, namely, of a law which ought not to exist on the statute book, but which does, and yet one that is not enforced, except selectively, capriciously and in a cloak and dagger manner, to terrorize, victimize and humiliate LGBTs, rather than to really enforce the law,” says Navroz Seervai, senior advocate at the Bombay HC. He feels it is absurd to suggest that homosexuality between consenting adults should carry the same extreme penalty as murder.

Feminist and lawyer Flavia Agnes feels Section 377 is a provision that is virtually written to be violated. Asha Bajpai, dean, Centre for Law and Society, Tata Institute of Social Sciences, feels the court has upheld a law that cannot be implemented.

“This reflects a situation where the law is repealed by people’s behaviour, with a social movement and majority opinion rendering a law non-implementable,” says Colin Gonsalves, a senior advocate in the SC.

He believes this is the reality of mass resistance to a bad law. “The police realize that if they were to implement a bad law, they would get it in the neck.” He likens the current situation to Mahatma Gandhi making his own salt — an act of defiance against British imperialism.

Section 377 has no place in a civilized, modern, democratic and liberal society — one that values and respects basic human and fundamental rights, says Seervai.
“The law is antiquated and a relic of a long past colonial era, and should have been repealed or struck down by the courts years ago. It is potently unconstitutional, being violative of Articles 14 and 15 (equality) and Articles 19 and 21,” he says.