By upholding Section 377 of the IPC, the Supreme Court has put the brakes on the progressive march of human rights in India. The Delhi High Court decriminalized homosexuality in 2009, and had the support of the Union Government, which decided not to challenge the verdict. It helped society come out of the stigma of ‘shame’ attached to gay relationships. The two- judge bench led by Justice G S Singhvi reversed this decision on Wednesday by re-criminalizing oral and anal sex between two consenting adults.
The regressive verdict puts 3 to 5 per cent population of the country in the category of criminals and takes away their fundamental right of equality promised under the Constitution on the mere basis of their sexual activity. To protect human rights, society needs support from the legislature, the executive and the judiciary. The verdict of the SC that only Parliament can change the law is baffling. By hiding behind the constitutional morality in this case, the court has lost the moral ground it gained on the basis of judicial activism in the recent past. It has dictated policies to the executive and questioned the administration for upholding the rights of the citizenry. By citing a flimsy logic that the harassment and humiliation meted out to homosexuals is at a miniscule level, the court has only made admission of its ignorance.
Scores of gays and transgenders become victims of police brutality and social injustice under Section 377. No society can become progressive keeping double standards – enjoying fruits of financial equity brought through globalization and pushing a section of society back to the closet in the name of cultural and moral protection. Progress requires the acceptance of change. While the court has given up, Parliament should take up the challenge and erase this stain from the Indian jurisprudence by removing Section 377 that even the British have done away with. Getting a political consensus on such a sensitive issue is going to be an uphill task. Responses from a few young parliamentarians have come in support of removing the vintage law of 1860.