Step out fearless

Step out fearless

Homosexuality is no crime. From fearing state and society, gays now have law on their side.

Supreme Court has consigned over 150 years of discrimination against the LGBT community, wrought by enactment of the Indian Penal Code in 1860, to the annals of history. Section 377 IPC, that denied India’s homosexual citizens the right to pursue their sexual orientation, applies no more to consensual sexual behaviour. In restoring their rights to equality before law, personal liberty, privacy and life with dignity – all fundamental rights guaranteed to an Indian citizen which should have been theirs from birth – a grave constitutional wrong that questioned the Republic’s commitment to minority rights stands corrected. The next logical step would be to recognise gay marriage.

Supreme Court (SC) has also ejected from its precedents the problematic verdict of December 2013 that recriminalised homosexuality and its observations about “so-called rights of LGBTs” who constituted “a miniscule fraction of the country’s population.” This had stoked much unease over law giving precedence to social mores over constitutional morality. But subsequent judgments including the historic Right to Privacy verdict and the present one have conclusively rejected the state’s right to police bedrooms or deny constitutional rights to a minority.

From Justice Chandrachud beginning his judgment by noting “The lethargy of the law is manifest yet again” to Justice Nariman concluding that “it is clear that Articles 14, 15, 19 and 21 have all been transgressed without any legitimate state rationale to uphold such provision”, SC’s focus on individual rights promises to bridge the gap between constitutional aspirations and ground realities. After all, current Indian politics is predisposed towards religion and caste – or more broadly towards large collectives having strength of numbers. This is where a judiciary committed to democracy and constitutional values is the last resort for harried citizens.

Recall how in reuniting Hadiya with her husband or quashing bans against Padmaavat, SC faced down majoritarian impulses. For similar reasons, successive governments shrunk away from amending 377. Before SC recognised privacy as a fundamental right, government stood in opposition, regarding it as an abstract concept. After helping demolish 377 and more cases like Aadhaar and adultery awaiting their turn, the privacy judgment may just have begun impacting our lives in concrete ways. What Supreme Court does in the realm of safeguarding individual liberties must shine like a beacon for lower courts to replicate. The defence of a person’s rights – even when you disagree with that person – keeps democracy, dissent and diversity alive.