To achieve true equality, challenges that lie beyond reading down Section 377 cannot be ignored

[dropcap]N[/dropcap]ow that the hearing of the case on the constitutional validity of Section 377 of the Indian Penal Code is over, we don't have to debate what the verdict is going to be. That is a foregone conclusion. The Supreme Court will decriminalise consensual same sex relations amongst adults in private. The law of British vintage, from 1861, will be given a burial once and for all. There is no doubt about that in my mind. We have to only wait for the verdict.

That is for three reasons. First, the earlier judgment of the Supreme Court in Suresh Kumar Koushal (Koushal) was, no further explanation needed anymore, poorly written — ignoring the precedents of the Supreme Court itself, and in ignorance of the changes in the rape law — a non-starter. It was bound to be set aside sooner or later. Secondly, the first nail in the coffin of Koushal was the Supreme Court's judgment in the privacy case — the Puttuswamy case — which made it clear that the issue of privacy was wrongly dealt with in Koushal.

 Thirdly, the nature of the questions in the recent hearing before the Supreme Court clearly revealed the mind of the judges. They were clearly of the view that Koushal was wrongly decided.  Any doubt would have been set to rest when the Government, obviously seeing the trend of the court, submitted that it would leave the fate of Section 377 to the wisdom of the Court.

Equality laws in private sector

The only issue that remains is this: to what extent will the language of the judgment go to pave the way to address the challenges in the future? And there are a lot of challenges.

Firstly, there will be the major one the issue discrimination. Whereas in the public sector, the Constitutional provisions on equality can address these and discrimination can be invoked, there is a complete absence of any law regulating discrimination on any account in the private sector. Equality, being the overarching Constitutional value in our society, there is a need to have a general anti-discrimination law applicable to the private sector also which does not discriminate against persons and treats them alike. The only criteria ought to be the functional fitness. This should be applicable to all historically discriminated groups as well the marginalised groups.