There is a raging debate on whether to do away with a law that bans homosexuality in India. Various gay groups in the country have been protesting and seeking a repeal of Section 377 of the Indian Penal Code which makes homosexuality punishable by law. Union Law Minster Veerappa Moily added fuel to the debate by saying the government is studying the law.
Justice M F Saldanha, former judge of the Bombay and Karnataka High Court, who has had to make some judgments based on Section 377, told rediff.com's Vicky Nanjappa says that the Union government has to deal with this issue very carefully and scrapping the law is not as easy as it is made out to be by some gay rights activists.
What are your views on the demands made by gay rights activists regarding scrapping of Section 377 of the Indian Penal Code?
Look sex is a biological and from what I have been reading about this issue there is substance in what they are saying. Their contention that sex is biological and same sex relations are an individual's preference.
Will scrapping Section 377 of the IPC make a difference?
I don't think it will make any difference to gay rights. Tell me how many cases have been reported under this section. People with a different sexual orientation continue to do what they want and having this law makes no difference to them.
So are you saying that Section 377 has to be scraped with immediate effect?
Not exactly. There are various aspects that need to be considered before taking this decision. On one hand, a section of the people are seeking to legalise same sex relations and on the other we have to think about the society that we live in. In Indian culture it is not acceptable as yet. Hence the government has to take care and ensure that doing away with this section does not make society go haywire. Once this law is scrapped there could arise another demand to legalise gay marriages as is done in some parts of the United States of America.
Your argument is fine as long as it is sex between two consenting parties. What about a case of child molestation or rape of a man by another man?
When I dealt with a case of sodomy of a child, I had only Section 377 under which I could convict the accused. This is the irony. We need to examine this law carefully and ensure that there are separate laws that deal with child molestation. Bringing the entire issue of homosexuality, child molestation under the ambit of one section does not help. And yes as you pointed out a man raping a man is a rarity, but yes it could happen.
The government has to examine this aspect too and ensure that Section 377 is reworded and specifically mentions that sex between two consenting adults of the same sex shall not be an offence. But most importantly the social fallout of repealing such a section needs to be taken before any action is taken.
The government seems to be in two minds where this issue is concerned. Can a repeal of the section be sought claiming that is violative of our fundamental rights as enshrined in the Constitution?
The concept of fundamental rights has been expanded by the courts to a large extent. Under fundamental rights one has to look at the provision of right to life and under this provision comes the process of life. If one looks at it carefully a sexual preference or homosexuality will surely fall under the process of life. Hence one could challenge the law before the court.