SC verdict: Harsh and inhuman

Apex court has criminalised relationships among lesbians, bisexuals, gays, transgenders.

The Supreme Court has been making news of late with its controversial judgments. The latest is its reversal of an earlier court’s verdict permitting freedom to lesbians, gay, bisexuals and transgendered (LGBT) persons to follow their natural preferences in seeking partners. Now, the highest court in the land has criminalised such relationships even if they are consensual.

 Further, by making this an offence that attracts a maximum punishment of 10 years to life imprisonment, the apex court has rolled the country back centuries. As India’s celebrated writer Vikram Seth grieves, “Today is a great day for prejudice and inhumanity.” The ruling has also invited worldwide censure. Leading newspapers have condemned it editorially in no uncertain terms.

This ‘symbol of 19th century intolerance’ has even been criticised by Pope Francis who has explained that the “catechism of the Catholic Church clearly says that homosexuals should not be marginalised because of this (orientation) but that they must be integrated into society.” His now famous five words “Who am I to judge?” has prompted a telling article in The New Yorker on a forgiving pope who “stepped away from the disapproving tone and the explicit moralising typical of the church.”

The verdict of the Supreme Court was the result of several petitions by Hindu, Muslim and Christian religious groups in the country. Scriptures of the various religious beliefs followed in this country, including the Vedas or the Bible, are replete with examples of alternate sexual orientation. They have mentioned them, not as examples of ‘sinful’ behaviour or aberrations of nature, but as normal human occurrences like any other. There is no sense of shock or misgiving in any of these religious texts while referring to lesbian, gay, bisexual and transgendered persons. On the other hand, they are treated with dignity and respect. The character of Shikhandi in the Mahabharata is just one example.

Cultural setback

Again, as we all know, artists and sculptors in our land have viewed such persons with no inhibition or bigotry. India’s temple architecture displays these ‘aberrations of nature’ spontaneously and with no hint of guilt or accusation. They are the silent emblems of a free and fair social order that existed hundreds of years ago. What a shame that in modern, 21 st century India, we should still be grappling with outdated customs and court cases in this regard. One can only attribute such intolerance and prejudice to the influence of colonial concepts of morality, when such activities were termed as criminal offences in that notorious code of 1860.

Why, even as late as 2012, the UPA led central government told the Supreme Court that it was opposed to the decriminalisation of homosexual activity, which it called "highly immoral and against the social order." It also pointed out that India's moral and social values were different from other countries, and therefore, the state should not be guided by them. Yet, in the same year, the centre surprisingly reversed its stand by asserting that there was no error in the court decree which decriminalised homosexual activity. This resulted in the apex court reprimanding the government for frequently changing its stand on the issue by admonishing: "Don't make a mockery of the system and don't waste the court's time."

Now, the highest court in the land has set aside the 2009 Delhi high court order which permitted homosexual partnerships. LGBT groups are not wrong in fearing that the SC verdict will render them vulnerable to social ostracism or even police harassment.

“The Supreme Court's ruling is a disappointing setback to human dignity, and the basic rights to privacy,” they say, while supporters of the ruling welcome the idea of treating them as criminals. Perhaps, we should question the wisdom of judging people by their sexual orientation. It could lead to other forms of discrimination against those whose physical or mental abilities do not conform.

If we accept that one ‘deviation’ from the natural order is wrong and deserves punishment, then any other departure from the normal also becomes a crime. Should we punish mental retardation because it does not follow the accepted standard of normalcy? Or, condemn people with physical defects and disabilities because they have strayed away from the normal pattern? An intolerant society which does not permit anything other than what it dictates is a regressive society. Constitutional propriety apart, the SC verdict is harsh, inhuman and unscientific in a country that boasts of its ability to reach other planets. If we accept it, we will only be stepping back a few hundred years.

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