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“Judgment is a blow for fundamental rights.”
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While the invalidation by the Delhi high court judgment of Section 377 of the Indian Penal Code which criminalised homosexuality has been hailed as the Magnacarta of sexual minorities’ rights, it may not not put an end to the long-continuing debate over the issue. It is likely to get hotter now. The debate had gained in intensity when the Union law minister recently indicated that the government might be open to repeal the Section, which is a legacy of colonial law, with religious leaders of all persuasions and many others raising their voice against it. This had forced the government to take a step backward. The court verdict expectedly has been opposed vehemently, as much as it has been welcomed by the lesbian, gay, bisexual and transgender (LGBT) community and those who support their rights.
The judgment is a blow for the fundamental rights of individuals and an affirmation of the equal rights of sexuality minorities. A sexuality minority is like any other social minority and a democratic and constitutional society has to protect its rights. But law is not always the best tool to change entrenched moral codes and social attitudes. That is why legality is not social acceptance. Homosexuality will legally no longer be an unnatural or deviant behaviour but may continue to be looked upon so, if the serious opposition to the judgment is any indication. In that sense the judgment has actually become part of the divisive debate on the matter. The debate is likely throw up various issues, which need to be addressed, as it has implications in health and medical practices, inheritance etc. It has to be clearly understood that the judgment has not conferred any special privilege on sexual minorities. It has only legalised their rights within the framework of their sexual preferences. Their conduct will be subject to the normal laws that govern the sexual conduct of adults.
The verdict is applicable only to the citizens of Delhi. The LGBT community in the rest of the country has a difficult fight on hand to get their rights legalised. The division within the country, which was reflected in the differences of views within the government also over the issue, is a pointer to that. The moral foundations of society have not broken down with the judgment. In fact homosexuality is not a crime in most countries of the world. But the Central government and states will certainly be sensitive to the issues that come up during the discussion.
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