The betrayal

Supreme Court has thrown away the opportunity to defend sexual freedom, uphold human rights.

In a sad and shameful reversal, the Supreme Court has upheld Section 377 of the Indian Penal Code, meant to stamp out "carnal intercourse against the order of nature" and mostly used to harass, humiliate and deny freedom to consenting homosexual adults. The bench led by Justice G.S. Singhvi set aside the Delhi High Court's considered judgment and the Union government's support for it, to declare that the law could only be changed by Parliament. This is not correct procedure. It is simply the refusal to extend constitutional protections to some Indian citizens, on the basis of their sexual activity. The court, in this instance, seems to have abandoned its duty to protect fundamental rights, its capacity to lead progressive change, and left this difficult task to Parliament.

For the last one and a half centuries, Section 377 has been a blunt instrument of repression one that looks equally upon paedophilia, rape, bestiality and all shades of sexual experiment, love and commitment between queer adults. The 2009 Delhi High Court judgment of Justices A.P. Shah and S. Muralidhar, which read down the section, had carefully placed its verdict in the framework of constitutional morality, pointing out how discrimination on the basis of sexual orientation contradicted the principles of equality and inclusion. "Morality by itself cannot be a valid ground for restricting the right under Article 14 and 21. Public disapproval or disgust for a certain class of persons can in no way serve to uphold the constitutionality of a statute." Rejecting this progressive reading, one that places sexual freedoms in the rubric of human rights, the Supreme Court has recriminalised oral and anal sex and lobbed the matter to the legislature. Incidentally, such sensitivity to judicial decorum and the separation of powers was not visible in recent instances when the court dictated policy to the executive, and questioned administrative decisions. But now, at a moment when the court could have seized the lead to affirm human rights, it has inexplicably given up. In the past, when legislatures could not take leaps of the imagination or antagonise perceived public opinion, the courts have shown the way. They have catalysed democratic rights, defended the disadvantaged in the best tradition of judicial activism.

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