Over the past few months, we have witnessed uproar due to the shocking judgement passed by the Honourable Supreme Court of India a little more than a month ago. I am referring to the black day of 11th December, 2013 when in a move that shocked the nation and the world at large, a division bench headed by the now retired Justice Singhvi decided to overrule a Delhi High Court judgement that had struck down section 377B of the Indian Penal Code which reads:
“Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.”
In essence, it was a section inserted to soothe the attitude of an archaic society that has long since ceased to exist in 19th century itself, in an age and time when the concepts of right and wrong were a farfetched dream for the citizens of any colonised nation. Let’s return to modern day India. Courtesy some liberal judicial interpretations of the constitutionally sanctioned Fundamental Rights, we have numerous rights (rights which are not stated explicitly in the Constitution but are more inferred,) including the right to privacy. What section 377 B means is an absolute invasion of that right. Going by the logic of the section, if two people have consensual sex against the ‘order of nature’ in a private room and someone peers through the keyhole and lodges a complaint, they’ll be arrested. The state, in its moral stride has essentially decreed that all sexual acts except consensual peno-vaginal sex between two adults is illegal.
If we are to analyze the judgment, some factors stand out. One of the reasons offered by the Supreme Court to uphold section 377 B’s constitutional validity is that it targets acts rather than people, and thus is uniformly applicable to all citizens. What they fail to recognize here is that these “acts” which they seek to criminalize are inexorably linked to the sexuality of the LGBT community, whose rights are clearly being violated by the same logic. But again, a disgusting choice of words is seen in paragraph 52 of the judgment, which reads, “In its anxiety to protect the so-called rights of LGBT persons…” The degrading of the community and its rights just because of its existence as a minority is shocking. Furthermore, the court also maintains that the insertion of the section forming the basis of harassment and blackmail only warrants for an amendment to the law by the legislature and does not make the section ultra vires. To cap it off, the judgment laid forth a political challenge of sorts when it suggested that an alternative could be an act by the legislature to delete the section in contention.
I refuse to dwell on the ramifications that this decision will hold for the future of politics in our country. All I will say is that I am shocked; shocked and disappointed. The upholder of the nation’s fundamental rights has failed the nation. In an ironic maneuver, a judgment has turned citizens into criminals. Protest all you will, but the truth of the matter is this: at the bottom of all our hearts, we will be left with just one painful thought, and this will be the collective ideology of us all: “On 11th December 2013, the Indian Judiciary failed its duties and principles. It failed its philosophy… It failed you and me. But above all, it failed itself.