Free Press Journal

Section 377: Realism triumphs

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(PTI Photo/Kamal Kishore) (PTI9_6_2018_000133B)

With the march of time, the boundaries of individual freedoms continue to expand. The Supreme Court of India by striking down a key part of Section 377 of the Indian Penal Code, a 158-year-old-provision criminalizing homosexuality between consenting adults, has accorded primacy to individual rights. What the lawmakers were hesitant to do for decades, the apex court relying on its creative freedom not only to interpret but very often make laws has now, at last, decriminalized anal intercourse. The politicians, ironically, are now congratulating Their Lordships for the decision. Clearly, they feel relieved they don’t have to own up legitimizing same-gender sex in a society still seeped deep in social and cultural conservatism. Judges don’t have to fight elections and therefore can afford to be a step or two ahead of the social and moral biases of the ordinary people.

But a bit of perspective is necessary even while celebrating the court verdict. Section 377 was in place for over 150 years, but even the British deleted its equivalent from their statute sometime in the 60s only. The LGBT movement in the West is a post-60s phenomenon. The point is that if we are aeons behind in economic ,scientific, technological spheres as against the West, it is unfair to expect that we will march in step with them when it comes to sexual mores. Eventually , modernism is a function of economic and social liberties. Several African and Islamic countries still treat homosexuality as a heinous crime against society, prescribing severe punishment for the offenders. Given this background, we in India should be happy for coming to terms with the force of nature in determining sexual orientation when we have and letting it be, without seeking to correct or penalize the sexually non-conformists. Henceforth no legal stigma will attach to the LGBT community, though it will take a while for the society as such to delink ‘deviant’ sexual behavior from moral stigma. As Chief Justice Dipak Misra, delivering the historic judgement, said, quoting the famous German philosopher Friedrich Nietzsche, “I am what I am. So take me as I am.” The court based its order delegitimizing a legal provision which had passed the judicial test repeatedly on an individual’s right to free expression.

“To deny LGBT community of their right to sexual orientation is a denial of their citizenship and a violation of their privacy. They cannot be pushed into obscurity by an oppressive colonial legislation.” It was a battle for equal rights and the LGBT community too enjoyed the same rights and liberties which others did, said the five-member bench in a unanimous verdict. The present case is the culmination of the path-breaking order of the Delhi High Court in 2009 delegitimizing Section 377. Four years later, the apex court had reversed the High Court order, saying it was for the legislature to make or unmake laws. A number of Christian associations and NGOs, including a few individuals, had opposed the dilution of Section 377. The Centre did not oppose the petitions seeking decriminalization of homosexuality. Remarkably, even the socially and sexually conservative RSS has welcomed Thursday’s verdict. That is saying a lot, isn’t it?