Sreelatha Menon: The death of a law

Section 377, which banned gay relations, also used to be invoked to protect minors against sexual abuse

Section 377, which banned gay relations and was recently declared unconstitutional by the Delhi High Court, also used to be invoked to protect minors against sexual abuse.

The recent Delhi High Court ruling that virtually finished off Section 377 of the IPC gives a false sense of triumph to those who believe that it was a fight between those who wanted to protect gay rights and those opposed to it.

But the case had nothing to do with gay rights. Justice JN Saldanha once used the Section to give justice to a 10-year-old victim of sexual abuse and award a 10-year jail term and a fine of Rs 25 lakh to a godman.

Saldanha says that though the Juvenile Justice Act and the Children’s Act exist to protect children, these do not have stringent provisions to protect children from sexual abuse. He said though the case was confined to the Delhi High Court, it was fine now to talk about the Section in the past tense. The judgment has held it unconstitutional in the context of fundamental rights of freedom and equality. So, it becomes legally suspect for all courts and future cases, says the retired judge. So now, what is there for the minors?

If the case is to be taken as a moral victory for homosexuals, it is hardly one. There has been no case where this Section has been invoked against homosexuals or against homosexuals having consensual sex. But petitioner Naz Foundation claims that the law has caused “blackmail, harassment and death of many lesbian, gay, bisexual and transgender people in India.”

The Section has, in fact, come in handy when problems arose in consensual sex among adults. Justice Saldanha cited a case that he fought as a young lawyer in Mumbai nearly three decades ago for a young call girl who had complained against an Arab for injuring her by sodomising her. It was consensual but the man turned out to be having homosexual inclinations. She wanted to be compensated. Finally, he had to pay her a compensation of about Rs 2 lakh.

Again, if two consenting adult men or women have sex and one of them contracts HIV, the removal of the Section leaves even homosexuals with nothing.

Purushottaman Mulloli, who filed an intervention petition in the eight-year-old case, originally filed by Naz Foundation, said the whole intent of the case was to project the fact that homosexuals were a high-risk group and needed protection through NGOs. The Section, he said, obstructed this. He says if courts approve everything that is consensual, then why ban Sati, mercy killings or suicides?

He said the government promised to consider the case sympathetically even before the ruling was given and now the ruling had thrown out a law that never really hurt homosexuals. If police harass gays, it is police who need reforms, he says.

His petition questions the premise that homosexuals are high risk. He says the judgment will marginalise them further and help vested interests project them as high-risk groups, more likely to contract AIDS than others, and thus expose them to social stigma.

There are misgivings among religious groups about the idea of legalising homosexuality. But it is a fact that gays need to exist as much as others. The dilution of Section 377 has, however, achieved this in a fashion that also removes essential legal safeguards for both minors and homosexuals.

Maybe Law Minister Veerappa Moily will have to think of new laws to fill the gap before any damage is done.