Decriminalisation of consensual adult same-sex intimacy
A five-judge bench of the Indian Supreme Court (SC) has scrapped section 377 of the Indian Penal Code (IPC) unanimously in four different judgments on 6 September albeit the same section will still stand on the statute to deal with the 'unnatural' sexual offences against non-consensual sexual relationship between adults, minor and animal like sodomy and bestiality. This revolutionary judgment rewrites the history of the Indian minority LGBTQIA+ community and observed 'it cannot wait for a majoritarian Government, if the fundamental right of the citizens are getting violated in the process and make it no longer illegal to love'. The century old Section 377 of the IPC, 1860 actually contains Victorian Christian morality that criminalises all sorts of sexual activities those are 'against the order of nature' and not penile-vaginal including homosexual and heterosexual behaviors, oral or anal sex etc.
However, Dipak Misra, the Chief Justice of India, opines that individual autonomy and liberty, equality for all sans discrimination of any kind, recognition of identity with dignity and privacy of human beings constitute the cardinal four corners of the Indian constitution. He agrees with the view that a person who has come of age and has the capability to think on his/her own, has a right to choose his/her life partner. No one can escape from their individuality....look for the rainbow in every crowd, CJ Misra added and according to him denial of self-expression is like death.
Justice Chandrachud has pointed out that constitutional morality, not societal morality, should be the driving force for deciding the validity of Section 377 while Justice Indu Malhotra remarked that “history owes an apology to the members of the LGBT community and their families for the delay in providing redressal for the 'ignominy' and 'ostracism' they have faced through the centuries”. They also held that homosexuality is 'not an aberration' but a 'variation of sexuality' and sexual orientation was an innate attribute of one's identity which cannot be altered.
Furthermore, the Court went on to question the rationale behind how criminalising consensual sex between two adults in private under section 377. Same sex acts of intimacy, according to the Court, require the same constitutional protection as heterosexual intimacy and it is the responsibility of the State to ensure that freedom. The right to privacy and dignity is enumerated in Art. 21 of the Indian Constitution and infringement of that right only because of sexual orientation is purely discriminatory. The Court further affirmed that it is not a mental disorder but something innate to one particular human being. The verdict also confirmed these people's right to marry and to have families.
Bangladesh also has the same S. 377 in the Penal Code which stipulates that whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Consequently, the members of the LGBTQIA+ community are compelled to live under the constant fear of reprisal, persecution and unjustified hostile discrimination only because of their inherent sexual orientation despite the fact that now it has been scientifically recognised that sexual orientation of an individual is natural and part of a range of human sexuality which is not under the control of anyone.
There is no large-scale movement against this archaic law in Bangladesh due to numerouys and multifaceted reasons including restricted freedom of expression on this issue, social taboo, cultural stigma, religious restriction etc. Furthermore, unlike India, the law has never been challenged before the Court in Bangladesh even though it clearly violates the fundamental rights of equality, of non-discrimination, right to life and privacy enumerated in the Articles 27, 28, 32, 39, 43 of the Constitution. Hence, the exemplary decision of the Indian constitutional court brings a golden opportunity for Bangladesh to test the constitutionality of the controversial S. 377 through the prism of the judiciary.
The writer is pursuing LL.M. in international energy law and policy at the University of Stirling, UK.