Imlisanen Jamir
Today, the Supreme Court will conclude its series of hearings on the constitutional validity of Section 377 of the Indian Penal Code, a colonial law, which criminalises gay sex.
While there is indication in the top court’s statement last week that the Supreme Court has set itself to reconsider its 2013 verdict that upheld the constitutionality of Section 377 of IPC criminalising homosexual relationships, the government’s position on the matter is ambiguous and disheartening.
On July 12, after the first round of hearings, a five judge constitutional bench declared that discrimination against the LGBT community would go once the provision is declared unconstitutional.
As problematic as this wide sweeping generalisation is, the court however made clear that it would decide on the validity of the provision on the basis of constitutional morality and not the majoritarian morality.
It is also uplifting to see that one judge from the constitutional panel, Justice Indu Malhotra stressed that homosexuality is not an aberration but a variation, adding that family and societal pressures force many gay persons to mental trauma.
The July 12 statement, barring a shocking turn of events, indicates that the country’s top court is in favour of doing away with the 157 year old colonial law. And while this is cause for optimism, the central government’s ambiguous position on matters of homosexuality and the court’s apprehensiveness to touch on other rights related matters is disconcerting.
The Supreme Courts first step towards sexual freedom is being cautiously supported by the centre, albeit only on the matter of doing away with the criminalization of consensual gay sex.
In addition, religious sections have already voiced their disdain at the central government for leaving the case up to the court’s judgment, alleging it of making a U Turn on the issue. This has been supplemented by voices from right wing nationalist sections claiming that homosexuality is against Indian cultural traditions and that only a fraction of the population supports doing away with the law.
It is obvious that the government is concerned about reactions from conservative groups, religious and secular, leading the centre to advise the country’s top court against delving into issues related to other rights like inheritance, same-sex marriage, adoption rights etc.
Following the Supreme Court’s seemingly inevitable decision on Tuesday, it will also need to work on addressing these and other related rights quickly. The case in hand is not confined to sex alone, but the freedom to live, express and love.
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