By Sarosh Bana
In a retrograde judgment that denigrates the liberalism that India espouses, the Supreme Court the highest court of the world’s largest democracy has held homosexuality to be illegal and criminal, and punishable with imprisonment for life.
In a verdict widely derided as an attack on individual freedom, privacy and choice, the Supreme Court on 11 December 2013, reversed the July 2009 ruling of the Delhi High Court that had decriminalised gay sex between consenting adults in private. In one fell swoop, the two-judge bench of the apex court rendered India’s estimated 2.5 million gays vulnerable to blackmail, intimidation, police harassment and extortion.
Many among the sexual minority had started living together following the Delhi court’s ruling. But now they face an uncertain future as gay sex is illegal and their status has become that of criminals once again. Just 0.2 percent of India’s population is HIV/AIDS afflicted owing to the country’s successful AIDS control programme, but there is now the fear that these patients may no longer be able to access public health facilities without risking harassment or arrest.
Central to the opposing orders of the two courts was Section 377 of the India Penal Code (IPC), enacted in 1860 by the British when India was their colony. It states: “Anyone who voluntarily has carnal intercourse against the order of nature with man, woman or animal, shall be punished with imprisonment of either description which may extend to life, or to ten years, and shall also be liable to a fine.”
This archaic legislation is not only anomalous to India’s liberal thought that had given the world the Kama Sutra, the ancient Sanskrit treatise on love and sexuality, it is entirely at odds with prevailing jurisprudence. For instance, an Indian youth, Alistair Pereira, who had, in 2006, run his car over 15 labourers sleeping in the streets of Mumbai, killing seven of them and maiming seven others, was sentenced to a three-year term by the Bombay High Court, the verdict subsequently upheld by the Supreme Court. The sentences were delivered under the IPC Sections 304 A – culpable homicide not amounting to murder; and 337 – causing hurt by act endangering life or personal safety of others.
Politicians including senior ministers, charged with large-scale plunder that has wiped out almost two percent of the GDP and has denied benefits from reaching the underprivileged, roam free. A year ago, then Law minister of India, Salman Khurshid (now External Affairs minister), got away scot free after issuing death threats against an eminent civil rights activist when he could have been prosecuted under IPC Section 506 that provides a jail-term up to seven years for ‘threat to cause death or grievous hurt’.
In its landmark judgment of 2009, the Delhi High Court struck down Section 377, saying it violated the Indian constitution, which guarantees protection of life and personal liberty, and prohibits discrimination on grounds of religion, race, caste, sex or place of birth, beside enjoining a life of dignity and freedom of expression to all citizens. The two-judge bench contended: “If there is one constitutional tenet that can be said to be the underlying theme of the Indian constitution, it is that of ‘inclusiveness’.” READ MORE
