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    Rabble Rousing Random Ramblings by S Jagadish is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 Unported License.

    July 03, 2009

    Too early to cheer for 'queer'?

    Yesterday, in a judgment that undoubtedly was significant, the Delhi High Court de-criminalized consensual sexual acts of adults in private

    We declare that Section 377 IPC, insofar it criminalises
    consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution.
    The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.
    There are two implications from this ruling:
    1. Homosexual acts between consenting adults are no longer criminal acts and the parties involved cannot be booked under Section 377 of the Indian Penal Code.
    2. Non-vaginal sex (oral, anal, masturbation, etc.) is also not criminal as long as it is between consenting adults.
    However, these are early days. For starters, the judgment was passed by the Delhi High Court, whose jurisdiction is probably restricted to Delhi, or at most the NCR area. However, since this is a situation where the constitutional validity of a specific section in the Indian Penal Code was struck down, the implications should be applicable to all parts of India provided that no other court in India has a contrary view. However, there's nothing that currently stops other High Courts from a contrary view, assuming that petitions against Sec 377 are in existence in other courts.

    The decision could still be appealed in the Supreme Court. The government could in all likelihood not appeal against the decision. However, when morons and mobs belonging to various 'religious' and 'cultural' groups/political parties decide to take matters into their own hands as part of protesting in the name of "Indian culture and values", and if the judiciary asks the government what it's going to do to stop the violence, the government could easily point out that this was all because of the court's decision taken without factoring in the implications.

    Further, all that the judgment does is to de-criminalize private homosexual activity between consenting adults. Does that necessarily make it legal? For e.g., "Not guilty" doesn't mean "innocent".

    The last word on this is probably a few years away. Was it Lao-Tzu or Confucious who said "A journey of a thousand miles begins with a single step"?

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