The Government has decided to seek review of the Supreme Court (SC) judgement of December 11, 2013, on Section 377 dealing with gay sex. The Government strongly felt that treating the consensual gay sex between adults as an offence is against the fundamental rights of gay (LGBT) community and that Section 377 is British imposed archaic sodomy law. The Government feels criminalizing sexual expression, that is penal-oral or penal-anal sex of homosexual men and transgender persons strikes at the root of the dignity of the homosexual men.
It is unfortunate that the Government for political reasons refuses to put the real issue before the public, instead finds fault in the well decided SC judgement. All that the SC has done was to reject the wrong interpretation of section 377 by the Delhi High Court which decriminalizes gay sex. If the highest court in the country to interpret the law is SC, how Government can say that interpretation of the SC is wrong. Then whose interpretation is final? The SC said very clearly that though they do not agree that the gay sex should be punished but the Section 377 as it stands leaves no scope to decriminalize the gay sex. Section 377 states that whoever voluntarily has carnal intercourse against the order of the nature with any man or woman commits an offence punishable with imprisonment. All that SC said that so long section 377 is on the statue book, gay sex is a punishable offence, and SC cannot help as it cannot rewrite the law and it is for the Government to amend section 377 or delete altogether, if it so desires.
It means the Government for ulterior political reasons does not want to take inevitable option of amending the law but wants to pass the buck on the SC. The kind of Government we have today, the stand taken by them is not surprising as all along they have been only fooling or misleading people.
The real issue is whether gay sex should be permitted? The other issue is if it is formally or expressly not permitted in the society, should it be punished as an offence? One more issue is, whether the homosexuality is for the public good, good of the majority, or the progress of the mankind in the long run or for building civilization. Does it promote or undermines the institution of Family which is the cradle of civilization?
By presidential reference, the Government is giving impression that any sex whether between different gender or same gender, so long it is fully consensual, it is the fundamental right of the participating parties under the Constitution of India. Hence the same cannot be faulted under any law including the Indian Penal Code which has suddenly become an archaic law despite living with it for the last 66 years.
My question is, does this applies to all sexual offences, if the same is fully consensual? What about the serious offences like "Adultery" under section 497 of IPC . It states, whoever has sexual intercourse with a married woman with her consent, it is an offence and punishable and in such case the wife is not punishable. If you follow the Government logic, since Adultery is also fully voluntary and consensual intercourse, it should be decriminalized. Incest is also another sexual wrong which is not permitted in our society. Incest is a prohibited sexual intercourse with blood relation including parent, grand parent child, grand child, siblings. This prohibited sex is also fully consensual and voluntary (and if not, it amounts Rape). This also, according to Government's logic, should be decriminalized. It also means no sex at anywhere and at any place between any relationship should be banned so long they are consensual.
If the Government succeeds, important question, therefore, is whether will we be able to retain the fundamental basics of the present concept of family which is the cradle of civilization and growth of the mankind?