On Decriminalizing Homosexuality in India

The entire internet is ablaze with headlines that tout how morally repressive, unconstitutional and barbaric the Supreme Court of India has been in upholding a section of the Indian constitution that criminalizes homosexuality. What happens between two consenting adults is entirely their business – obviously, within limits that do not endanger either them or society as a whole.  How is it becoming of a country that terms itself as a secular, liberal democracy to pass judgment on this under the rule of law?

As the world’s largest democracy, India has the ability to set a shining example in dealing with issues that can influence the way the world thinks – the denunciation of this very law last year by the Delhi High Court is a great example and was a treat to read,

If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of ‘inclusiveness’. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as “deviants’ or ‘different’ are not on that score excluded or ostracised.

The Supreme Court however has slunk away from its moral responsibility, and adhered to a technicality by proposing that amending laws such as these are the responsibility of the legislature, and not of the judiciary. Surely, if it isn’t judicial overreach in protecting rights, upholding liberty, and issuing diktats in the past about everything from red beacons on official cars to the state of pollution in the city of Delhi, then this must not be so either?

What matters is not that this law hasn’t yet been repealed by parliament. What parliament thinks of this law is irrelevant because it infringes on the very basic rights that should be enjoyed by every citizen of the country.

What worries me is that the premier representative body of the people does not have adequate representation of the section of society that this law affects. Nor are a large majority of Indian lawmakers either interested or courageous enough to drive home an act that is bound to affect their mandate, especially if they have conservative and religious groups backing them. The bitter fact is that too often has the judiciary been made the single point of appeal to the wrongdoings and misrule of the legislature – and frankly, unless there are sweeping changes in the mindsets of those who sit in parliament, things aren’t going to change.

If anything, this should be a warning sign for everyone who thinks of the judiciary as a panacea for all ailments that plague the government – judges too have their biases, and in taking this judgment, the bench has definitely shown its inability to think outside of the narrow moral constraints that plague society. One can only hope that there will be some recourse in this decision, driven by groups that will definitely lobby against it. But one way or another, there is an urgent need to rectify this gaping travesty on the face of providing equality and justice to every citizen of India.

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