Justice denied

By upholding Section 377, the court has undermined constitutional values.

The Supreme Court verdict upholding the constitutionality of Section 377 of the IPC has shamed the Constitution. Its decision will be remembered in infamy as one of those decisions that, like Dred Scott, show how liberal democracies can sometimes give rein to a regime of oppression and discrimination under the imprimatur of law. The court's decision is morally regressive, constitutionally dubious, legally arbitrary and smacks of the kind of hypocrisy that gives the rule of law, and the institutions that uphold it, a bad name. When the Delhi High Court, in a magnificent decision, read down Section 377, a new light had been kindled. It looked like the nation was ready to confront its deepest prejudices. The court has, in one fell swoop, extinguished the flame of humanity and reason from our Constitution. It has given free rein to prejudice, hollowed out the meaning of constitutional protections. And in doing so, it has undermined its own authority.

The issue is simple. Does it befit a liberal democracy to criminalise homosexual activity between consenting adults? Does it befit it to be hostage to an archaic concept of "natural"? Is the criminalisation not an infringement of every value we hold dear: liberty, equality, privacy, the right to life? In this sense, the case is not about gay rights. It is about all of us. It is also about the fact that in a decent society, no one, no matter how small the minority, should be targeted for simply being who they are. The court has, in some literal sense, infringed on the dignity of innocent citizens who just want, like everyone, the right and space to be themselves. To deny them that space is not to uphold some order of nature or a moral value or some tradition. It is simply to let prejudice masquerade as law.

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