Tension between tradition and modernity has always been with us. Each generation has resisted the change that the successor generation embraces, sometime hesitatingly, sometime most willingly. But all societies have evolved over a period of time, some slowly, others at a fast pace. But change is the only constant in every society. We cannot make the time stay still even as the world moves on.
Therefore, it was inevitable that what might have appeared to a vast majority of the people as right and proper when it was first made into law is now seen by an articulate minority as anachronism, ripe for outright deletion from the statute book. The Supreme Court decision to review the colonial era ban on gay sex is an indication of the direction in which things are moving.
The 1860 law which criminalises homosexuality and other sexual acts considered against ‘the order of nature’ under Section 377, and are liable to attract a punishment of life imprisonment, is once again under the scanner. A five-judge bench of the apex court will consider whether to admit a curative petition against the Supreme Court decision in 2013 which had reversed the Delhi High Court order in 2008 decriminalising consensual sex between individuals regardless of gender or sexual orientation.
Normally, curative petitions for a review of the court’s own orders are heard in judges’ chamber, not in open court. But on Tuesday, the court made an exception, hearing the challenge to its own 2013 order in an open court. Gay sex activists had thronged the outer complex of the apex court. They had reason to hope after the court decided to review the decision on the tenability of Section 377 of the IPC by a fresh five-member bench.
The lawyers contended that Section 377 violated the fundamental rights of the people and thus was unconstitutional. The law was in direct conflict with citizen’s right to privacy, to choose their own sexual partner and to have consensual sexual relations. One’s sexuality cannot be a criterion to make him or her a criminal, the court was told by lawyers arguing against Section 377.
The fact that the section has been on the statute book for over 155 years without being thus challenged frontally underlines the huge transformation of the society, in every sphere of life, including social, cultural and economic, in the intervening period.
Today, it appears as an anachronism, an infliction from history, a hangover of the vastly conservative times when even the mention of the word sex itself was a taboo in polite society and when religiosity had pervaded public discourse everywhere. Admittedly, it took even the western world a long time to decriminalise homosexuality. It was in the latter half of the twentieth century that almost all western nations removed the stigma, legal and social, from homosexuality.
Yet, some 70-odd countries still have a legal ban on same-sex relationships, a majority of these being in West Asia and Africa. However, since the hold of religion on society is weakening everywhere thanks to modern education, exposure to cinema, television, literature, etc., India may be ripe for an up-front abnegation of the old bar against consensual sex between individuals regardless of the gender of the partners.
There is no point trying to stop the march of time. Even though a majority of Indians might still sniff at gay sex, sexual minorities can no longer be denied their rights. The apex court has done well to recognise that reality. Since the politicians cannot be expected to show the courage to remove the ban for fear of losing the votes of a vast number of people, who still mistake religion and conservatism for one’s sexual preferences, the highest court in the land can be a step ahead of the legislature and acknowledge modernity by removing the anachronism from the statute book.