HOPE FLOATS AGAIN SECTION 377

Section 377 of the Indian Penal Code, which criminalises (अपराधीकरण) gay sex, reflects only medieval(पुराना) prejudice(प्रतिकूल प्रभाव). A lost opportunity to invalidate(रद्द करना) it has been dramatically(नाटकीय ढंग से) resurrected(पुनजीर्वित). Two years ago, the Supreme Court declined(अस्वीकार करना) to review its retrograde decision(प्रतिगामी निर्णय) of 2013 upholding(कायम रखना) the validity of Section 377. By rejecting the review petition, the court then failed to make use of an opportunity to revisit the contentious(विवादस्पद) Suresh Kumar Koushal verdict(निर्णय) and bring the law in line with its own vision of fundamental rights(मौलिक अधिकार ), especially the idea that equality and dignity(गरिमा) cannot be denied to any section. The court has now paved the way for a comprehensive(व्यापक) hearing on how to protect the dignity and rights of individuals with alternative(विकल्प) sexual orientation(यौन अभिविन्यास) by referring the matter to a five-judge Constitution Bench. The Chief Justice has noted that the case involves questions with constitutional dimensions. The court has indicated that the larger Bench could traverse(पार करना) beyond the limits of a curative petition(उपचारात्मक याचिका), which is essentially(अनिवार्य रूप से) a limited, additional remedy(अतिरिक्त उपाय) to aggrieved litigants
(पीड़ित वादियाँ) after the Supreme Court’s final verdict(निर्णय) and the rejection of a review. There is new hope that the Delhi High Court judgment of 2009, reading down Section 377 to restrict its criminal import to non-consensual sexual acts(गैर यौनाचार काम) involving adults and all sexual acts inflicted(पीड़ा पहुँचाना) on minors, may be restored.
                  The latest challenge to its continuance(बने रहना) on the statute book(कानून की किताब) comes in a fresh context(प्रसंग) where the intervening years(बीच के बरसो में) have seen considerable
(महत्वपूर्ण) legal progress in the jurisprudence(न्यायशास्त्र) of sexual orientation and gender identity. In April 2014, while recognising the transgender community as a third gender entitled to the same rights and constitutional protection as other citizens, a Bench of the Supreme Court subtly(आसानी से) recorded its criticism(आलोचना) of Koushal. Departing from the Koushal formulation(सूत्रीकरण) that there was no evidence that Section 377 was an instrument of harassment(उत्पीड़न), the Bench had highlighted the misuse(दुरूपयोग) of the provision(प्रावधान) as one of the principal forms of discrimination(भेदभाव) against the transgender community. Further, it observed that “even though insignificant(तुच्छ) in numbers”, transgenders were entitled(हक़दार) to human rights. That was obviously(साफ-साफ) a rebuttal(खंडन) of the earlier Bench’s claim that those affected by Section 377 were only a “minuscule fraction(मामूली अंश) of the population”, as though the relative smallness of a group’s size dis-entitled(वंचित) it from constitutional protection. On the global front, the United States Supreme Court held last year that the gay community was entitled to due process and equal protection in the matter of marriage, thus allowing same-sex marriages. In view of these developments, the time has come for an honest judicial evaluation(मूल्यांकन) of where India stands on the issue of homosexuality(समलैंगिता). Some may argue that it is up to the legislature(विधान सभा) to remedy the situation. In the backdrop(पृष्टभूमि) of a provision that continues to have criminal and public health consequences(परिणाम) for a section of society, the court has a duty to enforce(लागू करना) their fundamental rights(मौलिक अधिकार) rather than wait for the political class to come up with a legislative remedy(विधायी उपाय).