Bombay HC remark on Sec 377

The Bombay high court in a landmark observation said that the controversial Section 377 of the IPC that deals with unnatural sex needs a relook. The remarks came in the judgment delivered by Justice Bilal Nazki and Justice Sharad Bobde in the Anchorage case while acquitting two Britons of the charge.“There are lots of changes taking place in the social milieu and many people have different sexual preferences, which are even not considered to be unnatural,’’ said the judgment that was penned by Justice Nazki. “Therefore it is high time that the provisions of law which were made more than a century ago, are looked at again.’’ Though the judge’s remarks come as a suggestion, the city’s lesbian and gay community welcomed the progressive views of the judge —the first time any court in the country has spoken about changing the law. “It is a significant and forward-looking view,’’ said Lesley Esteves, a Delhi-based activist. “Across the world countries have decriminalised homosexuality, but the law continues to exist in India,’’ she added.A vestige of the British Raj, Section 377 was enacted in 1860 in line with the anti-sodomy laws prevailing in England at the time. It says: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment of either up to 10 years or life. Elaborating a bit, the HC agreed with judgments that said that the only ingredients required to prove guilt in such cases is “carnal intercourse with penetration’’ and “if its against the order of nature’’. This criminalises a whole range of sexual acts from mutual masturbation, to fellatio and anal sex. “Consent is immaterial,’’ wrote Justice Nazki.According to gay rights activist and founder of the city NGO Humsafar Ashok Row Kavi, the law has been misused. “Section 377 has been used to stigmatise and harass gays and lesbians, and even blackmail them,’ said Kavi. A PIL by NGO Naz Foundation is pending before the Delhi HC, urging a reading down of the law. Both Esteves and Kavi insist that the PIL does not seek to repeal the Section 377. “As of now, this is the only law that can be used to book paedophiles and protect children from sex offenders,’’ said Kavi, adding that, “However, consensual adults should be removed from the ambit of the Act in order to provide a semblance of equity and justice.’’ In 2001, the law commission had recommended a repeal of Section 377. Five years later, the Union Ministry of Family and Child Welfare in 2006 too had backed the PIL asking for decriminalising homosexuality. The Bombay HC’s comments on the sensitive issue has sure provided the activists some more reason to cheer.

No comments: