Lakshmi Chaudhry - SC verdict on 377: Why Indians, gay and straight, must all despair

When the news of the Supreme Court ruling declaring gay sex illegal broke on television, my eyes filled instinctively with tears. The overwhelming sense of betrayal and despair was instant. And I'm not even gay. My reaction was not just an act of empathy with my many gay and lesbian friends. It was in many ways entirely selfish. The highest court in this land has delivered an enormous blow to all Indians, men and women, gay and straight. It has declared that we the people are not free citizens, but mere subjects of the state whose bodies are subject to its jurisdiction even in the privacy of our bedroom. It has upheld the Indian state's right to decide what sexual acts are permissible between two consenting adults, and in doing so, it has enslaved us all in one fell swoop. For that is what the Supreme Court ruling represents: The triumph of colonial-era law over our very own constitution; the brute power of the state over the fundamental rights of the citizen.

The 2009 High Court ruling stated, "We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution." In other words, criminalising violates the fundamental rights to freedom, equality, and against discrimination. In decriminalising gay sex, the court was not just upholding the rights of the gay community but also the sexual freedom of all consenting adults. 

The court essentially struck down an outdated legal precedent based on Victorian (read Judeo-Christian) horror of homosexuality, and that did not recognise the modern right to privacy -- the right that has since been the basis for legalising contraception, abortion and homosexuality in the West. It also ruled against the Union Ministry of Home Affairs which argued that Section 377 is a justified intervention by “public authorities in the interest of public safety and protection of health and morals" -- an exemplary colonial argument befitting the upholders of Raj-era law. The ruling instead upheld the greater authority of our own constitution, and legal history, stating: If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of 'inclusiveness'. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations… Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination. This was the 'spirit behind the Resolution' of which Nehru spoke so passionately. 

In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual. 

And that is what the Supreme Court has "set aside" today. It has set aside our constitution, our history, our progress, and voted instead for the jackboot of "public authority". Many among us straight folks, even the 'liberated' kind, believe that homosexuality is someone else's problem. Sure, we'd like it to be legal -- on the grounds of fairness etc. -- but we assume it makes no difference to our life, our freedom. But it does. It is no accident that the moral mindset that treats homosexuality as a crime against nature also views premarital sex as a sin. The assumption is that a person's sexuality and sexual behaviour can and should be defined by one set of cultural values -- and all transgressions should be strictly punished in order to ensure conformity. These 'traditional' values are not just outdated, but also deeply anti-democratic. After 20 years of liberalisation, we have freed our markets to a great degree, but remain unwilling to grant the same level of freedom to our citizens. The very Indian state that has embraced 21st century capitalism continues to reject its concomitant value of individual liberty, be it in the realm of free speech or sexuality. 

In this, the Supreme Court is no different from the UPA government which refused to recognise marital rape on the grounds that a woman's body is not her own, but marital property at the disposal of her spouse. Both, in different ways, refused citizens of this nation sovereignty over their own bodies, their own sexuality. The right to say 'yes' or to say 'no' are two sides of the same coin of sexual freedom. And when tyranny wins decisively in one arena, it is strengthened in all others. Freedom in a democracy cannot be compartmentalized, where it applies to one set of citizens and not another. We're all a little less free today -- some far more than others. But make no mistake, this is a defeat for Indian democracy.

Supreme Court says gay sex is a criminal offence
The top court said the 2009 Delhi High court order decriminalising homosexuality is constitutionally unsustainable as only the government can change a law. In response, Law Minister Kapil Sibal said the Supreme Court is the final arbiter. "Parliament will take it up in due course," he said, not spelling out a time-frame. The court's order means gay sex between consenting adults stays a criminal offence under Section 377, a British colonial era law banning "carnal intercourse against the order of nature", which had been struck down by the high court. The Supreme Court said there is "no constitutional infirmity" in that law.

"It is surprising that the court which does judicial review on many issues has put the ball in the court of Parliament to decide on homosexuality," said additional Solicitor General Indira Jaising. "People expect the highest court of the land to protect their rights." The order is "a step backwards towards barbarism and medievalism," tweeted noted historian Ramachandra Guha. Gay rights NGO Naz foundation has said it will seek a review of the verdict.

Conviction under the existing 1890 law carries a fine and up to 10 years in jail. Gay activists allege that the police used the law to harass members of their community. Though the court leaves it to the government to act next, the numerous flip-flops by the Centre has not encouraged activists. The high court ruling was challenged in the Supreme Court by religious groups who argued that all homosexual acts were "unnatural".

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