Justice Indu Malhotra, who was a part of the 5-judge bench that took the decision on article 377, aptly said it in her verdict:
“History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution.”
The word “history” is important here because it took over 24 years for the legal system in India to repeal the provisions of Article 377, a law that was made in 1861 i.e. 157 years ago.
This repeal is a significant step towards legalizing people’s choice of a same-sex partner and allowing them to start a family by adopting children etc. So, while I celebrate for many of my friends who have been open about their sexual preferences regardless of the law, I fear that the marriage acts framed over 50 years ago will be a hindrance to their struggle for legitimacy. As demonstrated by the repeal of this law itself, it might take another decade to move the required changes through the legal framework of India and update the law.
I have long held a view that every law, be it civil, criminal, corporate or other, should come with a sunset clause i.e. they should be considered redundant unless they are reviewed and reinstated by an act of parliament, every 25 years. The world around us is changing rapidly and we still have over 300 acts that were made before 1947! In addition, there are laws governing commerce that were written when our nation was experimenting with socialism, and now are directly conflicting with the success we have achieved with capitalism & entrepreneurship.
Even the finance ministry brought in sunset clause for their schemes to “improve the quality of government expenditure”, proving that even the government believes there is merit in reviewing outdated laws from time to time. Therefore, all laws that are past their expiry date need to be rewritten to make them relevant for the era in which they are being used. This will significantly improve the quality of Indian law and justice, ensuring that “history” will no longer be apologetic to the citizens of free India.