The decision
by the Indian
Supreme Court on 11 Dec 2013 to uphold the constitutional validity of Sec
377 of the Indian Penal Code – and thus once again criminalise consensual
homosexual acts - has reopened the
debate in
India and elsewhere.
The judgement
overturned a 2009 decision of the Delhi High Court that Sec. 377 of the Indian
Penal Code was discriminatory against the gay community. It was for Parliament
to decide, the country's highest court said, not for judges to make the law. Surprisingly for a Court that has taken an activist position on many other issues, on this question it decided to go conservative.
Sec 377 of
the IPC violates an important liberal principle of law making and for that
reason alone it needs urgently to be repealed.
Law making
We need laws in order to regulate society and the economy. These laws are broadly
of two sorts, they are either restrictive in some way, i.e they proscribe
certain acts and activities that we might want to do; or they place a duty on
us to act in a certain way under a given set of circumstances. All restrictive
laws – don’t drink and drive, don’t assault someone and so on – inherently
interfere with our personal liberties - our freedom to go about our lives as we see fit. Two
essential criteria for a restrictive law therefore are: 1) We must be satisfied
that any personal liberty that it constrains is justified by the protection it
affords to someone else’s rights. As a corollary, no individual liberty should be infringed by a law unless the exercise of that liberty hurts or harms someone else or infringes another's legitimate right. 2) that by making the law and by the process
of implementing it there is not likely to be more harm than good. Personal
prejudice has no place in deciding which laws to enact.
Does Sec 377 measure up?
Sec 377
fails on both counts. It infringes the rights of homosexuals in a dramatic
manner by making it a criminal act to have consensual sex. But
does it meet the first criterion? Does it protect someone else’s rights? Clearly
so long as same sex relationships are both consensual and confined to the
privacy of the bedroom, it is hard to see how anyone’s rights are infringed. Right
wing religious groups that appealed to the Supreme Court would argue that they
are offended by what they regard as unnatural sex.
This is a
fundamentally flawed argument: there is no such thing as the right not to be offended. So long as the act that offends takes place
in the privacy of someone’s bedroom then any offence taken is entirely in the
mind of those outside it. There is good reason why it would be dangerous to
accept a right not to be offended by someone else’s private behaviour as a
basis of state enforced legislative or executive action. Each of us has his or her
own set of prejudices and while we are free to hold those views we have no
right to impose them on others. If this
principle was held firmly then we wouldn’t have to give in to illiberal demands
to ban books or films just because some group or other decided to take offence
when they had both the choice and the right to ignore whatever it was that so
offended them.
The second
criterion is more nuanced. If there were public benefit or some societal good
to emerge from a law that restricts individual rights and freedoms then there
is an argument to be made for such a law. Legislation aimed at curbing smoking
for example, or a tax that discourages alcohol or fatty food consumption fall
into this category.
But in the
case of Sec 377, the overwhelming
evidence is that a law that criminalises consensual homosexual acts actually
causes a great deal of harm to society as a whole. Across India some 50 million
people will be denied the opportunity to live their lives as they wish. Their
sexual lives will be driven underground. They will have to pretend to be
something they are not, subject to arbitrary persecution and exploitation by the
police, marry against their will an innocent person of the opposite gender
simply to keep up the pretense, and lead a life a fear, denial and despair.
And there is a further twist that is peculiar to the Indian context. The fact that our police and criminal justice system are both inept and corrupt, the law is often used to threaten, harass, persecute and exploit the people. Such malafide action is helped by the fact that an allegation of engaging in 'unnatural sexual acts' is difficult to disprove.
And there is a further twist that is peculiar to the Indian context. The fact that our police and criminal justice system are both inept and corrupt, the law is often used to threaten, harass, persecute and exploit the people. Such malafide action is helped by the fact that an allegation of engaging in 'unnatural sexual acts' is difficult to disprove.
Simply put
Sec. 377 infringes personal liberties and causes harm to wider society. The activity that Sec 377 proscribes - consensual homosexual acts in no way harms or hurts any third party, not does it impinge upon any right of any other person. Any offense taken by unconnected people is based on a personal prejudice that they should deal with without recourse to the law. Denying freedom to some people because of a baseless prejudice held by a vocal
segment of society is a step nearer to the state pandering to bigotry.
India’s
Parliament should act to free its people from a law that has been overturned in
the country that introduced it 152 years ago when it ruled India as its colony.
No comments:
Post a Comment