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Section 377: Why its abrogation should vest with Parliament, not the courts

As is appropriate for our time, this piece developed from a conversation on the repeal of Section 377 on Twitter. In the fiercely contested world of Indian Twitter, my interlocutor is on my side of the debate—she supports a secular, liberal world view and argues against majoritarian excesses. Further, from what I have seen, she seems animated only by the warmest of human instincts. 

But lacking such character and burdened with a life-long distrust of moral fervour, I found myself in deep disagreement with her arguments.  At issue was not whether Section 377 ought to be repealed—both my interlocutor and I feel that it should. Rather, at issue was whether it ought to be repealed by the courts or by Parliament. I feel that the repeal of Section 377 is properly the prerogative of Parliament, not of the courts.

Perhaps it is just a matter of age. Young progressives see the decriminalisation of homosexuality as an entitlement. I see it, as I do all personal law, as a matter that needs to be negotiated with society. Social norms—birth, marriage, death, inheritance—from which personal law flows are not immutable truths. They evolve, as society does, with technology, trade and travel. Each age has its definitions of normal and deviant. I do not suggest that these definitions are necessarily fair or equitable. Only that arriving at these are legitimate matters of public debate and contest. A century back, child marriage was the norm, gay marriage unthinkable. Perhaps inconceivably to someone in the 1920s, our norms today have flipped. Similarly we can only imagine the customs of the future.  But just as we don’t want to be shackled by laws that reflect that mores of an age past, nor would the generations who succeed us.

That is why our founding fathers, kept personal laws out of the reach of fundamental rights. Fundamental rights are after all supposed to beyond the whims of an age or a crowd. They are a statement of our essential humanity. Personal laws are not. Personal laws reflect only the social consensus of society at a point in time. They can be made and unmade. And in our system of government, it is the job of Parliament to make and unmake laws. Not of courts. We cannot trust un-elected appointees, however wise or well-intentioned, to divine the will of the people.

That is why B.R. Ambedkar and Jawaharlal Nehru subjected the great Hindu Code Bills to parliamentary and democratic scrutiny. They could have, perhaps, imposed these by constitutional fiat. They didn’t. Centuries of dead habit swept away. But through debate, disagreement and ultimately a decision at the hall of the people. If Parliament was the correct forum to decide on the Hindu Code Bills, arguably of immensely greater per capita consequence, then it is also the correct forum to repeal Section 377.

The judicial precedent on Parliament’s prerogative with respect to Section 377 is clear. The Supreme Court has repeatedly upheld the constitutionality of the adultery law under Section 497 of the Indian Penal Code. Further, at no occasion has the Supreme Court suggested that the Hindu Marriage Act, 1955, which criminalised polygamy for the majority community, is inconsistent with fundamental rights. In both these instances the Supreme Court has affirmed that the right of consenting adults to engage in intercourse is not absolute--it can be qualified and restricted by law and by Parliament.

Yes, an activist court may chose to ignore precedent in the case of the repeal of Section 377. But gay rights advocates should be wary of such a pyrrhic victory. An ugly reckoning awaits the court that has abandoned all judicial restraint and stamped repeatedly on the principle of separation of powers. The objects of its activism will likely be collateral damage. This is not an idle threat. The health and freedom of millions of women in the US is at threat due to an imminent repeal of Roe v. Wade—the case in which the US Supreme Court significant extended the right of women to have abortions. Roe v. Wade has been the target of furious conservative opposition as an instance of judicial overreach. Finally, after decades of trying, conservatives may have the votes they need in the Supreme Court to overturn the judgement. Judicial activism is a game two can play.

Even beyond the question of institutional proprieties, the narrow reprieve now being sought at the courts with regard to Section 377 is an injustice to the gay rights movement. Rarely in democratic societies has public opinion moved so fast and so comprehensively on matters of sexual scruple. Rarely have a people claimed their dignity with as much color, music and joy. The gay rights movement is the gold standard of democratic persuasion. Largely because of its efforts, in India and abroad, public opinion has shifted. The Congress party is publicly in favour of gay rights. Even conservative religious organisations like the RSS and the All India Muslim Personal Law Board (AIMPLB) have withdrawn their objections to its decriminalisation. The time is ripe to press not just for decriminalisation of homosexuality, but for a more comprehensive legal recognition of the rights of same sex couples—inheritance, divorce, adoption. There is a real risk that a verdict procured through a strained reading of fundamental rights would take the moral pressure off the legislature to act in the matter. Leaving, as we have said, same sex couples hostage to a future reactionary constitutional bench.

There is, as I reminded by my interlocutor on Twitter, a cost to this insistence on institutional fastidiousness—borne mostly by working class transgender people, who are routinely harassed and often beaten by the police. How does one reconcile this fuss about process and procedure with that dark reality of India’s streets? Not easily. The temptation to go through the courts is understandable. But today, more than even, we should avoid it. There is an urgent need to fortify our institutions as we fight the majoritarian surge.  They are our only defense against fascism.

The long-term interest of the marginalised and the poor is precisely in the protections that checks and balances offer. As Amartya Sen has repeatedly pointed out, that it was the poor that came out in large numbers to defeat Mrs Gandhi in the election of 1977 to protect their basic political and civil rights. They understood, as did our founding fathers, that only by the separation of powers, by the separation of church and state, that is, only distributing the sources of authority, can liberty be assured. 


Disclaimer: Views expressed are personal. They do not reflect the view/s of Business Standard.

Twitter: @postcolonialist

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