Article 377: Why its abrogation should vest with Parliament, not the courts

As is appropriate for our time, this piece developed from a conversation on the repeal of Article 377 on Twitter. In the fiercely contested world of Indian Twitter, my interlocutor is on my side of the debate—she supports a secular, liberal world view and argues against majoritarian excesses. Further, from what I have seen, she seems animated only by the warmest of human instincts.

But lacking such character and burdened with a life-long distrust of moral fervour, I found myself in deep disagreement with her arguments. At issue was not whether Article 377 ought to be repealed—both my interlocutor and I feel that it should. Rather, at issue was whether it ought to be repealed by the courts or by Parliament. I feel that the repeal of Article 377 is properly the prerogative of Parliament, not of the courts.

Perhaps it is just a matter of age. Young progressives see the decriminalisation of homosexuality as an entitlement. I see it, as I do all personal law, as a matter that needs to be negotiated with society. Social norms—birth, marriage, death, inheritance—from which personal law flows are not immutable truths. They evolve, as society does, with technology, trade and travel. Each age has its definitions of normal and deviant. I do not suggest that these definitions are necessarily fair or equitable. Only that arriving at these are legitimate matters of public debate and contest. A century back, child marriage was the norm, gay marriage unthinkable. Perhaps inconceivably to someone in the 1920s, our norms today have flipped. Similarly we can only imagine the customs of the future. But just as we don’t want to be shackled by laws that reflect that mores of an age past, nor would the generations who succeed us.