Sec 377 bares contradiction between legal system, reality

‘SC Upheld Law That Cannot Be Implemented’

Anahita Mukherji TNN 

Mumbai: The Supreme Court verdict upholding an archaic British law criminalizing homosexuality has resulted in the legal equivalent of an Alice-in-Wonderland situation. 
    As of today, according to the law of the land, homosexuality is a crime that carries a maximum punishment of life imprisonment. So, how come all those who are gay and have spoken openly about it in the newspapers, on TV and out on the streets in protest against the SC judgment, have not been immediately arrested for practising sexual acts that are against the law? After all, they have admitted to a ‘crime’ that carries a life sentence. 
    The absurdity of the situation shows the clear contradiction between the ground reality of modern India and a legal system that’s stuck in nineteenth century Britain. Legal experts say the contradiction shows the manner in which India’s legal system is devaluing itself — for why have laws you know you are not going to implement at all times? How can there be any police discretion when it comes to dealing with an “offence” under the IPC that carries a life sentence? 
    “The prevailing situation is one which no society that is governed by the rule of law should tolerate, namely, of a law which ought not to exist on the statute book, but which does, and yet one that is not enforced, except selectively, capriciously and in a cloak and dagger manner, to terrorize, victimize and humiliate LGBTs, rather than to really enforce the law,” says Navroz Seervai, senior advocate at the Bombay high court. He feels it is absurd to suggest that homosexuality between consenting adults should carry the same extreme penalty as murder. 
    Feminist and lawyer Flavia Agnes feels Section 377 is a provision of the law that is virtually written to be violated. Asha Bajpai, dean, Centre for Law and Society, Tata Institute of Social Sciences, feels the court has upheld a law that cannot be implemented. 
    “This reflects a situation, where the law is repealed by people’s behaviour, with a social movement and majority opinion rendering a law non-implementable,” says Colin Gonsalves, a senior advocate at the Supreme Court. He believes this is the reality of mass resistance to a bad law. “The police realize that if they were to implement a bad law, they would get it in the neck,” said Gonsalves. He likens the current situation to Mahatma Gandhi making his own salt — an act of defiance against British imperialism. Section 377 has no place in a civilized, modern, democratic and liberal society — one that values and respects basic human and fundamental rights, says Seervai. “The law is antiquated and a relic of a long past colonial era, and should have been repealed or struck down by the courts years ago. It is potently unconstitutional, being violative of articles 14 and 15 (equality) and articles 19 and 21,” he says. 
Verdict disappoints judge who decriminalized LGBTs 
    TIMES NEWS NETWORK New Delhi: Law Commission chairman and former Delhi high court chief justice A P Shah, who had delivered the historic judgment on Section 377 of the IPC decriminalizing gay sex, has expressed disappointment at the Supreme Court verdict setting aside his order and recriminalizing samesex relationships. “My first feeling was deep sadness about the LGBT community… I was disappointed,” Justice Shah said in an interview to a TV channel on Sunday. 
    Justice Shah said he had thought his judgment would be sustained. “Given the subject matter of the appeal, I thought that our views would prevail,” Justice Shah said, commenting on the SC order. 
    The government on Friday filed a review petition against the SC verdict on Section 377. The SC verdict had upheld the legality of section 377 of the IPC, which provides for imprisonment with up to a life term. 
    In another interaction with a newspaper, Justice Shah said the British, who had introduced Section 377 as they feared “their army and daughters would be tainted by Oriental vices”, had repealed it in their own country. Their judicial committee recommended that “for consenting adults, it should not be a crime”. 
    Justice Shah defended his judgment saying gay sex by consenting adults was not a crime in all of Europe and the US. On the issue of morality, the Law Commission chairman said what was envisaged in the Constitution was not popular morality. 
    “Probably, public morality is the reflection of the moral normative values of the majority of the population, but constitutional morality derives its contents from the values of the Constitution,” he said.

Source::: The Times of India, 23-12-2013, p.8,    http://epaper.timesofindia.com/Default/Scripting/ArticleWin.asp?From=Archive&Source=Page&Skin=TOINEW&BaseHref=TOIM/2013/12/23&PageLabel=1&EntityId=Ar00800&ViewMode=HTML