Changing times transform morality which, in turn, changes the law; so what was immoral a decade ago is perfectly moral today. This is why the Supreme Court may decriminalise consensual sex between two or more consenting men in private because while those guilty of sodomy were to be burnt alive in 1209, today, the right to sexual intercourse between consenting men or consenting women within the confines of a flat or a hotel room may soon be recognised as a fundamental right.
After all, lesbians, gays, bisexuals, transsexuals and others, all enjoy the same right to life, employment, and their right to procreate while recreating, guaranteed by the right to life and liberty under Article 21 of the Constitution. Ipso facto, those addicted to gambling have a right to gamble away their monthly salaries and batter their wives and children within their homes if the state considers legalising gambling and perhaps prostitution as well. After all, former Supreme Court judge, Santosh Hegde, opined, “prostitution which is practiced throughout India, should be legalised.”
The Law Commission of India has recommended that sports betting and gambling should be legalised and regulated by the Aadhar and PAN cards being linked to those who gamble so the state can garner revenue from the over Rs 150 crore illegal betting and gambling industry. If Parliament accepts Justice Hegde’s recommendation, India may soon emulate the eight European countries of the Netherlands, Germany, Austria, Switzerland, Greece, Turkey, Hungary, and Latvia, where commercial sex workers unabashedly contribute to their nation’s gross domestic product.
To return to unnatural sex and Section 377 of the Indian Penal Code, it is true that what is done in private between two consenting men or two consenting women is not the business of the state. This is the norm in liberal European countries. But what is the consequence of legalising gay sex in private? Some of them may be infected by HIV and whether they take precautions or not, they may spread the infection to their “consenting” partners.
But the state can take care of all that because medical students who study in government medical colleges must have access to HIV + patients so they can study the effect of anti-retroviral therapy on human immunity. It was Justice Ajit Prakash Shah, an avowed agnostic-intellectual, former chief justice of the Delhi and Madras high courts, who penned this two-judge bench judgment which is a landmark in Indian jurisprudence.
Justice Shah was all agog hoping to be elevated to the Supreme Court because of his intellectual liberalism. But sadly, he was overlooked which led to him declaring on prime time news channels, “it would be wrong to say I am not hurt.” Ironically, when he was a judge of the Bombay high court, he castigated litigants who approached the media.
It was alleged that the late Chief Justice of India, (CJI) S H Kapadia, had said in a secret collegium meeting that Justice Shah would be brought to the apex court “over his dead body.” In a strange twist of fate, Justice Kapadia passed away soon after in January 2016 and Justice Shah reportedly was not present at the late CJI’s funeral in Mumbai although Justice Shah also lives in Mumbai.
Justice Shah diluted Section 377 in 2009 when he laid down that consensual sex between two private men in their own flat was perfectly legal and the police could not arrest them. However, this liberal view was not accepted by two illiberal judges of the Supreme Court, G S Singhvi and S J Mukhopadhyaya, who felt, with less than 200 prosecutions, it was best left to our law-makers to decide whether to criminalise or not gay sex.
The Supreme Court is seized of two equally archaic provisions of adultery in the Indian Penal Code and Criminal Procedure Code which punished men but not women who committed adultery. Two judgments in 1954 and 2011 had declared that a woman in an illicit relationship with a man could not be punished.
Perhaps, this protected women who are by-and-large exploited by sex-obsessed men which led to the NDA government filing an affidavit stating that “decriminalisation of adultery” would lead to weakening of the marital bond. Strangely, the home ministry and health ministries of the Centre took opposite stands which meant each did not know what the other was doing.
But sexual privacy is an integral part of the generalised right to privacy which applies to men, women, homosexuals, lesbians, transgenders and also adulterers whether male or female. This is why those who challenged the provision exempting women from prosecution in adultery cases, cited the 1971 Law Commission of India report which wanted women to be equally liable with men for committing adultery.
The National Commission for Women (NCW) had in 2006 sought decriminalising adultery but opposed making it gender-neutral so that women would continue to be exempted from prosecution for committing adultery but men would not. By that measure, the NCW succeeded in its objective of protecting all Indian women from harassment even if they committed adultery, never mind the fact that a man would go to jail but a woman could stay at home after committing adultery.
And so we realise that when law and morality contradict each other, citizens can either become immoral or lose their respect for the law which is sometimes made by law-makers who believe that money overrides morality. And forward-looking judges like Justice Ajit Shah, who once looked forward to sitting in the Supreme Court, can do precious little but give interviews to the media.
Olav Albuquerque holds a PhD in law and is a journalist-cum-lawyer of the Bombay high court.