Is Supreme Court Gay sex verdict progressive?
The Constitution of India guarantees every individual the right to Life and Liberty (Article 21) and the right to equality before law (Article 14). The articles ensure that a person irrespective of his sex, religion, cast, and creed is equal and shall not be deprived of his life or personal liberty. The right to choose one's partner constitutes an integral part of personal liberty.
The Supreme Court of India vis-à-vis the above said rights in its recent judgment Criminalizing Gay sex, has come up with a rather disappointing verdict.
The verdict sparked off protests across the country and people from all walks of life strongly criticized the judgment. Social media was abuzz with the conflicting opinions. The only takers of the judgment were a few religious groups.
There are two main arguments given favoring such much judgment. One is sex between same gender is against the principle of nature, second the fear that if allowed a free run it might lead to everyone converting into homosexual and this may have a huge effect on procreation. However, both the arguments lack human logic.
It was the British who criminalised same-sex relationships, and the Indian attitude towards the same stems from our colonial past.
The irony is the highest court of the land is upholding the 153-year-old colonial law i.e. the validity of Sec377. The judgment comes at a time when our former colonial master has recently announced its first gay wedding to be held in early 2014.
The Apex Court overruled Delhi High Court's 2009 judgment striking down of Sec.377 of the IPC. This was hailed as a landmark judgment and was applauded by rights group activists all over the country. The judgment was seen as a new beginning of a progressive 21st century India as it did not discriminate its citizens merely on the basis of a lifestyle choice.
Section 377 punishes 'consensual' gay sex for being unnatural and if found guilty can lead to imprisonment of up to 10 years. This is an infringement of individual's basic human right to choose a partner. Such individuals as such are discriminated and marginalized for their different choice and the verdict would only make things worse for them.
The SC's ruling can definitely be seen as regressive and backward looking when compared to governments in other parts of the world that is trying to advance equality for the LGBT through appropriate legislations. There has also been a favourable change in the attitude of the Vatican once seen as homophobic.
The SC verdict will not only fuel the existing discrimination against the community but will also send out a wrong message to the international community that India is a deeply conservative nation. The main fear is that the SC verdict could be used as a weapon of harassment and persecution of the LGBT community.
Thus it can be concluded that the Supreme Court's verdict is far from being progressive. It would only tarnish our nation's commitment towards upholding the rights of the minority groups, such as the gay community.
The onus is on the lawmakers to amend the legislation in favour of the homosexuals. This however is a difficult task to accomplish considering the strong presence of pressure groups.
It would be welcome news if the Apex court reviews its decision on section 377 and provides a ray of hope to the LGBT community. This may uphold the basic essence of our constitution.
-Divya Sarjolta
