We the Indians have this peculiar problem; we are worried about our legacy to such an extent that we often forget the realities of the present. We keep boasting about how rich and versatile our traditions were in the past and forget the elements that threaten this vibrancy at present. We speak about how well our country managed its diversity in terms of religion and language for several thousands of years and yet, forgets to solve the growing communalism and extremism in the country. We take pride in the Kama Sutra, one of the finest texts on human sexuality, and then sensor movies just because they are filled with too many ‘immoral’ (?) scenes. We often say how enlightened our religions are and simultaneously get offended by a mere drama or movie. Most of the political leaders talk volumes about how their life is dedicated to social service and then end up running scams and scandals.
With regard to the homosexuality laws too, we are hypocrites. Our blood boils when we see Shashi Tharoor debating in Oxford, attacking the imperialism and why we need to shed away that historical burden imposed by the so-called ‘civilized’ white man over his ‘uncivilized’ fellow Indians. We all become nationalists and think why it is the need of the hour to destroy this colonial legacy that we bear. We keep renaming cities, like Bombay to Mumbai, Bangalore to Bengaluru, Trivandrum to Thiruvananthapuram, Pondicherry to Puducherry etc. to make them more Indian. Yet, we are not willing to remove section 377 from the Indian Penal Code (IPC), which penalizes the homosexual behavior, though the draconian law was the brainchild of a colonial administrator named Thomas Macaulay in 1838. Britain realized the need to be open to the diverse sexual preferences of individuals and scrapped the anti-homosexual legislation way back in 2005. The country who taught us homosexuality is a crime no longer practices the same. Yet, we are yet to accommodate this diversity of sexual preferences into our culture and social norms. It is time that we changed this.
While the share of population who fall under the purview of section 377 are relatively low compared to several other countries and a majority of the Indian population finds homosexuality immoral, these cannot be cited as reasons to keep this draconian law intact. Even if the 99.99% of the population are against something, the judicial system must stand with the remainder 0.01% in defending their rights if they are being violated by the majority. After all, the judiciary is for those who are deprived of basic rights and justice; majority rule only matters for the legislature and work of the judiciary is beyond the mere numbers.
While the government made it clear that it will not contest consensual same-sex sexual relations, the government also requested the court to not venture into other related areas like same-sex marriage, adoption rights for LGBT community etc. at this point. As the government itself is not opposing the rights of LGBT community and given the fact that the overall sentiments within the judiciary is in favour of the LGBT community, it is highly likely that the court may rule in favour of granting rights to the LGBT people regarding their sexual preferences and choosing partners.
One reason why it is high time to scrap this law is due to the fact that the sexual minorities in the country are facing discrimination at workplace, at educational institutions, and numerous other public spaces simply because their sexual orientations are different from that of others. A person’s choice of having a sexual partner is an act to fulfil his or her own desire. This means that, if a sexual act is consensual, this would imply both individuals can choose to do so as sexuality is a fundamental right guaranteed by the Indian Constitution. This, in turn, would imply that denying an individual the right to engage in consensual sex with another individual of same sex would constitute to the denial and violation of a fundamental right. The court at present is looking into this issue; whether the same-sex relationships also comes under the purview of fundamental rights.
The issue in front of the court is rather complex and needs a thorough scrutiny before arriving at a decision. The question that the honourable Supreme Court must answer would be of the legality of section 377, and not its morality. Let the people fall in love with the ‘people’, not the gender.
Picture Credits: Pune Samachar