It came 68 years too late. But Thursday will certainly go down in history as a landmark in India’s progress towards becoming a modern, liberal democracy. In reading down the obnoxious Sec 377 of Indian Penal Code (IPC), a relic of the Victorian era, in a unanimous 5-0 verdict, the Supreme Court has righted a historical wrong that denied the fundamental rights granted to every citizen in the constitution to lakhs of Lesbians, Gays, Bisexuals, Transgenders and Queer (LGBTQ) in the country and forced them to live in fear, guilt and constant threat of persecution for nothing more than exercising their sexual preferences. It is time to rejoice, not just for the LGBTQ community but for every Indian who loves freedom, equality and democracy and respects the Constitution.
Like most ‘straight’ Indians, this author too believed for years that homosexuality is unnatural, a sin and completely against the ‘order of nature’. But this misconception was yanked off the mind by the sheer weight of evidence that suggested it has been in existence for as long as mankind. Even our scriptures and temple carvings stand testimony to the fact that it was not considered a ‘sin’ in ancient times and was a latter day construct of prudish clergy. There is plenty of evidence in our ancient texts to prove that it is not an import from the West as most people tend to believe.
In hindsight, it seems preposterous that the Supreme Court that partially annulled the anachronistic Sec 377 (sex with animals remains a crime) on Thursday, had opined as recently as in 2013 that ‘a minuscule proportion’ of the population cannot claim fundamental rights. For one thing, the euphoric celebrations by the LGBTQ community across the country yesterday prove that their population is anything but ‘minuscule’. For another, the Supreme Court, the ultimate arbiter in matters of constitutional propriety, had no business taking such an obscurantist view of things. After all, the fundamental rights that barred the State from discriminating between citizens on grounds of caste, class, religion and sex are available even if they are in a minority of one.
The five-judge bench headed by Chief Justice Dipak Misra has done well to emphasize the point that ‘public morality’ cannot hold ‘constitutional morality’ hostage. Justice Indu Malhotra has done even better by maintaining that history owes an apology to members of the LGBTQ community. As Justice AP Shah who, as head of the division bench of the Delhi High Court which ruled that Sec 377 violated Article 21 of the constitution, has emphasized, Thursday’s decision has reaffirmed the Supreme Court’s role as the ‘last bastion’ of fundamental rights in India. The apex court deserves the nation’s gratitude for upholding individual freedom.
While the Supreme Court at least had the magnanimity to admit its mistake and correct a patently fallacious judgment, our political class, barring a few individuals like Shashi Tharoor and our very own Tathagat Satpathy, has failed the LGBTQ community, perhaps because it felt that backing them would cost it votes of the ‘straight’ majority! If the UPA government, supposedly a liberal dispensation, prevaricated when the decision of the Delhi High Court to annul Sec 377 was challenged in the apex court, the Modi government played it safe by leaving it the ‘wisdom of the court’. Coming from a government that has always cried foul against ‘judicial interference’, this was a shameless act of shirking responsibility. Even after Thursday’s verdict, most political parties have been wary of commenting on the issue. Even Mamata Banerjee, who normally has a view on everything, refused to share her views on decriminalization of consensual sex between same-sex adults despite repeated prodding by journalists. Subramaniam Swamy was speaking for many ill-informed Indians when he said it was a ‘genetic flaw’ and would lead to a rise in HIV and AIDS!
Though they have won the legal battle, the LGBTQ community has a long struggle ahead to win the battle for social acceptance. The reactions since the judgment suggest that a majority of Indians are still to reconcile to the prospect of treating them as equals. Now that the offensive provision has been struck off the statute books, the battle to accord them the rights of marriage, adoption and inheritance must begin in right earnest.
(DISCLAIMER: This is an opinion piece. The views expressed are author’s own and have nothing to do with OTV’s charter or views. OTV does not assume any responsibility or liability for the same).