Why the Supreme Court is correct in over ruling the High Court’s verdict decriminalizing gay sex

Most of the people in the virtual space, the liberal ones in the real spaces and of course the ones to whom it matters the most are very angry because of the Supreme Courts criminalizing consensual sex between same gender. And a lot of big words are being thrown about IPC 377, article 14,15, 21, constitutional, unconstitutional, ultra vires etc. Let me break down these for you.

IPC 377 

377. Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.

Sufficient can be read about this here : wikipedia : IPC 377

Article 14 

14. Equality before law –The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Article 15 

15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to

(a) access to shops, public restaurants, hotels and palaces of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public
(3) Nothing in this article shall prevent the State from making any special provision for women and children
(4) Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes
Article 21 
21. Protection of life and personal liberty – No person shall be deprived of his life or personal liberty except according to procedure established by law.
Now the judgement by the SC judges goes like this –
“…the declaration made by the Division Bench of the High Court is legally unsustainable….” One of the judges said : “Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes; and the people falling in the latter category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification. What Section 377 does is merely to define the particular offence and prescribe punishment for the same which can be awarded if, in the trial conducted in accordance with the provisions of the Code of Criminal Procedure and other statutes of the same family, the person is found guilty. Therefore, the High Court was not right in declaring Section 377 ultra vires Articles 14 and 15 of the Constitution.
The case when it was in court in 2009 reached a positive verdict for the LGBT community declaring that Section 377 was against their right to life and liberty guaranteed under the Constitution. The High Court then had dropped a subtle hint for the parliament to amend the law in accordance to the modern times. But perhaps because there is little representation of the LGBT community no one bothered to amend it.
The SC says now that in the last 150 years less than 200 people have been prosecuted for committing offence under Section 377 and this cannot be a sound basis for making the claim in the previous paragraph . And as far as the interpretation and the judgement of the SC is concerned, it is reasonable. They are correct.
It is the government, our elected leaders who should have taken the initiative to amend the law for this very controversially delicate demand. But any government who dares to do the right thing is bound to lose power ( read : votes and the opposition). A leader of strong merit is needed to make such a call. Rahul Gandhi does say that these matters should be left to the individuals and that he does not support the SC judgement(little does his support matter anyway). But then why has the amendment not being made till now? Did he really not see this coming?
And since we are talking about politics, if BJP comes to power next year or in Delhi this year …  ahem …. I would just pray that valentines day is not declared unconstitutional.
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Author: pecsbowen

reader.philosopher.writer

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