Home » Subject » Essay » Is Supreme Court Gay sex verdict progressive?<

Is Supreme Court Gay sex verdict progressive?

The Supreme Court, the beholder of Constitutional Rights of the citizens of India, has delivered a judgment that is debated for its progressive or regressive nature, is a serious issue. It is a question mark on the judicial mechanism exiting in the country where "Rule of Law" prevails.

Ever since the SC judgment has delivered the judgment, on Section 377 of the IPC, annulling the previous HC judgment, a heated debate has sparked in the country questioning the probity of the apex court.

To put the facts on record, Section 377 of the IPC came into effect in 1862 under the British Colonial rule. The said act was drafted under the guidance of Lord Macaulay.

A study shows that this 1862 Act, is effective even today in 80% of the Commonwealth countries while only 25% non- Commonwealth countries consider it as derogatory.

As per the section of the 1862 Act, same gender sex was criminalized. It states that "carnal intercourse against the order of nature" is a crime.

In 2009, Delhi High Court over turned the age old interpretation of the same gender sex and legalized the same gender intercourse. This was done on a petition filed by Naz Foundation.

This was a landmark judgment first time gave recognition to the Lesbian Gay, Bisexual Transgender (LGBT) community in India.

However, in a surprising judgment, the Supreme Court reversed the HC judgment and held that Lesbian Gay, Bisexual activity is an act of crime.

The arguments which SC placed on record were that there are no findings that homosexuals are being singled out or there is no proof that the debated section has been used for persecution of the homosexual community.

Adding salt to the wound was repealing the judgment that gives complete freedom to the LGBT calling them as "minority" community, describing them criminals.

The judgment does not recognize the stigma that the Lesbian Gay, Bisexual Transgender (LGBT) community faces, in personal or professional life.

The most astonishing element is the judgment ignores the freedom of individuals to choose its sexual orientation.

The said verdict is clearly an encroachment upon the right to live with dignity, right of privacy & non discrimination on the basis of sex which are gifted to each & every citizen under Article 21 & 14 respectively by the Constitution of India.

The Supreme Court is the only body which can interpret the Constitution, as and when required. Under Article 32 a person can move to the SC to get its rights protected. But if SC itself encroaches upon these rights, where will the individual go, no legal remedy left then.

The said facts show that the judgment clearly reflects medieval prejudices. After this judgment, a question crops up whether we are living in 19th or 21st Century?

Now coming to the spiritual & philosophical aspect, sexual feelings of an individual are more of their orientation than biological makings. A Jamini in Vedas says that no rule should be enforced unless it is in conformity with the current situations.

The World Health Organization in 1992 had said the homosexuality is not a crime. It has now been more than two decades to this, but we are not ready to accept that homosexuality as a completely normal activity.

The SC verdict came with an option that the Parliament to reconsider the said section.

Although a review petition has been filed in SC by the Law Ministry, but how much attention will it get is under doubt.

A committee to review the administration laws was framed in 1999. It suggested as many 1300 laws as outdated in the country. However, since then only 67 laws have been repealed so far.

The SC verdict clearly reveals the regressive mindset, which is least expected from those sitting to interpret the current requirements of society in a progressive manner.

Recently, an Indian gay couple has sought asylum in Britain as they are now considered "criminals" in their own country. A judgment which force the citizens to leave the country, no doubt needs reconsideration. Now all eyes are set on the SC to reestablish that it is a court of last resort by reversing this "not at all" progressive judgment.

Shilpi Agarwal