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The Supreme Court decision on Section 377 – not in keeping with the times ..




The position on homosexuality is controversial the world-over, with religious feelings causing different reactions in different countries. For countries that are deeply inspired by Christian or Islamic thought, homosexuality is against the order of nature, and homosexuals can be prosecuted. Homosexuals are prosecuted in countries such as Saudi Arabia, since these countries are governed by religious thoughts. In other countries, the rights of homosexuals has progressed so much that there are campaigns to ensure that marriage between homosexuals provides the same rights as those between a man and a woman. In fact, there are countries where a union between homosexuals is considered legal, and in the United States, there are many states where there the issue is a bitter contest. However, in most of these countries, there is no question of any relation between homosexuals being illegal.
However, India had a law on its books, Section 377, that considered a relation between 2 members of the same gender as illegal, and subject to prosecution. And the law made it easy for a money-seeking police force to harass people who seemed to be having such a relation. It is not just societal issues; the growth of AIDS was first noticed to be there in the homosexual community, and hence for effective treatment of AIDS in the country, there is a need to ensure that people having such relations are afraid of being prosecuted.
One would have expected that such a law, being on the rule books since 1860, would have been dropped a long time back. But it remained on the rule books, and hence was subject to misuse. When you look at such a relation, there has been a lot of research over a period of time, and forgetting what religious leaders, homosexuality is not against the order of nature and has been observed in nature. Hence, there has been a much greater acceptance of homosexuality, and as society progresses, it has been accepted that a relation between people who are adult and have the right to make their own decisions should lead to the conclusion that treating homosexuality to be a criminal act should have been declared void.

The decision by the Supreme Court has evinced a complex reaction. For quite some time now, the Supreme Court has been the final decision maker for making society more progressive; a number of these was for the rights of women, many of these were towards making politicians more accountable and reducing criminality in their ranks. So it was expected that the Supreme Court would accept the Delhi High Court decision (made in 2009) which struck down Section 377, and make homosexuality no longer a crime (we are still far away from the more disputed concept of accepting marriages between homosexuals as being equal to marriage between a man and a woman). With this expectation, the judgment was a shock for a number of people. However, religious groups welcomed the decision, being welcomed by clerics from Hinduism, Islam and Christianity.
However, there is also a different perspective to the decision by the court. For many years now, the Congress Government has cried bitterly over courts stepping into the territory of the Government and Parliament, and this was a perfect example where Parliament should have removed this law from the books many years ago. So, when you have Government ministers such as Kapil Sibal or Chidambaram, or Sonia Gandhi expressing disgust at the decision of the court, one should have asked the Government as to why they did not do anything for the past 9 years. That however would be a problem; given the religious leaders being against homosexuality, could the Government have really done anything about this section ? What if when the Government was proposing to drop this law, some cleric would have stood up and taken a stand that the Government was doing evil – would this Government had the spine to still go ahead ? Based on their level of reading politics into everything, one can be sure that the Government would have backed down.
This judgment passes on the problem to the Government. In the end, the court said that Parliament could remove the law, hence passing on the buck to the Government, which has started talking about the ordinance route. But what happens when a religious leader makes a bold statement against such an ordinance ? The Government would much rather have preferred that the court take this decision, and then there would been no need for the Government to get stuck like this. But if the Congress is stuck, the BJP is in a far worse decision, since many of its more loonier elements would not like to be supporting such a decision by the Government.




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