Matter of choice

The Supreme Court’s decision on the legality of homosexuality was a retrograde attempt to judge the conduct of free individuals of the 21st century on the basis of moral norms of the 19th century. Even these norms are alien, and as against the mistaken contention of some religious groups, Indian society had never considered the diversity of sexual behaviour as aberrant and criminal. The British law on which the 150-year-old Section 377 of the IPC, which criminalises homosexuality, was based has long been thrown out of the book even in Britain. The Delhi high court, in a landmark judgment in 2009, had scrapped that iniquitous law. The Supreme Court erred grievously in overturning that judgment and has shown how badly it is out of tune with the times.

The court’s view that Section 377 is not unconstitutional is wrong. India’s liberal and republican Constitution guarantees equality and freedom to all citizens. Sexual freedom and choice are inherent in that guarantee. Lesbians, gays, bisexuals and transgenders (LGBT) who have a different sexual orientation are a minority but minority rights are as important as those of the majority. As the high court had said, even public disapproval or a sense of morality of a section, even if it is a dominant section, should not be valid grounds to restrict the rights of individuals. What is involved is the consensual sexual conduct of adult individuals in privacy, and the law and the state have no legitimate power to criminalise it. Section 377 has been used as an instrument of repression, harassment and persecution of sexual minorities and the court’s order will again drive them to the closet and underground. The court has said there have not been too many cases of prosecution. But even if one person is treated wrongly, the law that enables it is wrong and unjust. The issue involved in the persecution of sexual minorities is not just of violation of rights, prejudice and discrimination but of public health also.

The court, which has only been too eager to expand its turf on various issues in the past, not only abdicated its responsibility, but has uncharacteristically deferred the matter to Parliament. If a judicial remedy is not possible to correct the wrong through a review or a decision by a larger bench, the government and political parties should find a legislative solution. Parliament should do what the court failed to do, and it should act sooner than later.