It seems often what our politicians hesitate to do, our courts might. In 2012, when the judgement of the Delhi high court decriminalising homosexuality was challenged in the apex court, it reversed the order of Justices AP Shah and Muralidhar Rao, maintaining that it was for Parliament to make or unmake laws. At the time, the UPA Government was in power and it had lacked the courage to defend the path-breaking decision of the Delhi high court. Given that a vast majority of MPs cutting across party lines tend to hold conservative views about sexual behaviour, it was believed that Parliament accepting the challenge of the Supreme Court would be politically imprudent.
The matter of legalising sex between two consenting adults of the same gender was therefore left hanging. However, hearing a batch of fresh petitions against Section 377 of the Indian Penal Code, a bench of the apex court headed by Chief Justice Dipak Misra might do what the previous court had failed to do. From the line of reasoning and the exchanges between the judges and the lawyers in the last couple of days, more significantly, from the ambivalent stand taken by the BJP-led NDA Government it is near-certain that Section 377 of the IPC will soon become history. This will come as a huge relief to a large number of people who have lived in fear of the antiquated law due to their sexual orientation. Given the global trend, especially in the free world, where the LGBT community has won equal rights in recent years, India playing catch-up so soon is not bad at all. Consider that in the UK till 1967, homosexuality was a crime. Many a promising career in arts, literature, politics, etc, was blighted when the persons indulging in what the law calls “unnatural offences” or “sexual acts against the order of nature” found themselves outed — and humiliated. No longer, though. Sexual preferences of consenting adults are now recognised as part of individual rights and enjoy protection from State inference and intimidation on the ground that it has no right prying into the private life of citizens. Indeed, from the flow of arguments thus far, it is quite likely that the judges will nix Section 377 on the ground that it violates the right to privacy. Having recognised privacy as a fundamental right, sexual conduct would automatically cease to matter to the State.
Notably, as the body of jurisprudence concerning fundamental freedoms and rights has grown in recent years in the western world, thanks to the influence of liberal education, and beliefs, privacy has emerged a cornerstone granting everyone to do his own thing without the society or the State enjoying any legal right to govern his behaviour. Sexual freedom is now the norm in most democracies. India has been slow to leave the company of Saudi Arabia, Pakistan and other Islamic nations which treat homosexuality as an unholy act punishable even with death. Of course, removing the legal stigma is not the same thing as to suggest in any way that homosexuality ought to be encouraged. No. It merely is to recognise that a significant portion of the population is differently oriented sexually and it should be left alone to follow its instinctual conduct without anyone taking offence. In other words, live and let live.