The Supreme Court has rewritten history and in one stroke vanquished the inequality meted out to homosexuals. In a historic verdict on Thursday, it ruled that gay sex among consenting adults is not an offence. The verdict has not only set a milestone for a community which was drawn into a long struggle, but has also signalled the dawn of a new era of equal rights.
The focus of the apex court bench was on how Section 377 of the Indian Penal Code infringed upon the fundamental right to privacy of citizens. Introduced in 1862, the section prescribed imprisonment of up to a life term and a fine for any carnal intercourse against the order of nature with any man, woman or animal. Ironically, the supreme court had overturned a 2009 Delhi High Court judgement decriminalizing gay sex when it was challenged by religious groups then.
If Section 377 created a certain section of people and denied them equality, the court has set it right, ruling that no separate class of people can be created by any provision of law and that gay sex is a biological phenomenon and not a mental disorder.
By virtue of this verdict, the Supreme Court upheld the fundamental right of life in the strongest possible way. This was evident from the fact that it asserted its power to strike down any provisions that violate this right, irrespective of the government’s power to repeal, amend or enact a law.
Even an argument that majority of the population is against legalizing homosexuality could not sway the judges into thinking otherwise. A line which reads: court decisions are based on constitutional principles and not on a referendum sums it all.
If two consenting adults decide to do whatever they want to do in their private life, it is no business of the government of the place or the society in general to intervene. Sexual choices of people cannot be questioned on these lines.
The verdict will deal a crushing blow to those propagating societal morality because constitutional morality has overridden it. This will go a long way in eliminating the stigma attached to the gay community and the persecution they faced because of the homosexuality trait.
The court however has only looked at decriminalizing section 377 and has not gone into other wider aspects like gay marriages, adoption of gay partners, rights of LGBT, and any government job quotas for gays.
By decriminalizing Section 377, the court has brought the law up-to-date with times, but the road ahead is not going to be easy and there can’t be a visible change immediately. This verdict will help the gay community come out of the shell they have been living in all along. However, changing societal mindsets will be challenging, especially in a country like India (Goa included). Gays for now may have got their oxygen, but shedding off the stigma attached in social life and at work places will take time. It would be interesting to see how society embraces this change.
