Open House Debate - I

The Recent judgement of the Hon’ble Supreme Court of India, in the matter of Suresh Kumar Kaushal v. Naz Foundation and Ors., has stirred the country and given rise to a new debate on whether Homosexuality is really against the law or not. At Rajiv Gandhi School of IP Law we gave a platform to discuss the judgement, based not only on legal standards but Social and Moral standards. This post revisits the points put forth by the participants.

Before going forward we must quote from the judgement:

“The court has merely pronounced on the correctness of the view taken by the High Court on the Constitutionality of Section 377 of IPC and found that the said section does not suffer from any constitutional infirmity. Notwithstanding this verdict the competent legislature shall be free to consider desirability and propriety of deleting section 377 from IPC as per the suggestion made by the Attorney General.”

The abovementioned phrase was the foundation of the first argument that was raised, it was argued that keeping the legality of carnal intercourse aside and focusing only on social acceptability, the judgement clearly identifies the right avenue to amend the law.

It was argued that “The Supreme Court is of the view that the Section 377 does not violate the constitution, However if the Society accepts is as a Non-Criminal Act, the legislature that forms the mirror of the society should decide on the removal of this section from the Indian Penal Code.”

The point to be noted here is that the Supreme Court has the power and authority to decide on whether a law is unconstitutional, this does not preclude the legislature from amending the statute and showing that the law is no longer in lines with the society.

A democracy is not about majority but it also aims as protecting the minorities, therefore such amendment must be made by the legislature.

The arguments from the other side included the scientific argument of foetal development, “when a child is genderless and homosexuality is a biological condition, therefore equating it with crime is not moral.”

Another argument was that it is historically accepted in India, and Kamasutra and Khajurao, etc. have depicted homosexual acts for generations, therefore it is an accepted act and therefore it is socially acceptable.

The argument around “behind the four wall theory” has already been dealt with by the Supreme Court where it states that “If a criminal Act is done within four walls, it does not become it a private matter.”

A legal argument made was that “Freedom to choose the partner should be left with the individual.” Everyone should be treated equally and since homosexuals are not same as heterosexuals, therefore, the rules for heterosexuals cannot be implemented for homosexuals. However, it was also pointed out that for this purpose the homosexuals must be accepted ‘legally’ as a minority which may be lead to such consideration, moreover such considerations can be taken into account by the legislature and not by the Supreme Court.

It was also argued that a strong message must be sent to the legislature by finding the law unconstitutional, however it was pointed out that this is beyond the purview of the court and would definitely come under judicial activism. The counter argument to this was that the court has acted in this manner on several other occasions. However another point that must be considered is that the whether the court will be justified in reaching such a decision as it is not the elected representative of the people and thus needs to base its analysis on a stricter point of view.

Conclusions:

1)      There is a sense that the Supreme Court could have taken more affirmative action regarding section 377, however it was pointed by some speakers that Supreme Court has legally justified its position.

2)      Law is a mirror of the society and therefore the legislature must take action to amend the IPC in order to decriminalize Homosexuality. Decriminalization should be based on the acceptability of such behaviour.

Click here to watch the video of the debate.

Inputs by Antriksh Mishra

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the author’s own and should not be considered as legal advice.