It is hard to imagine what the crime in same sex consensual sexual relations is or even can be. Or, how this act could have any negative impact on society or impinge on the rights and spaces of other people. It is imperative that we ask the question how this is a crime. Who is the victim?
The ruling by our Supreme Court making consensual same-sex conduct between adults a criminal offence is a body blow to people’s rights to equality, privacy and dignity. It is hard not to feel let down by this judgment, which has taken India back several years in its commitment to protect basic rights.
The Delhi High Court had ruled in 2009 that the outlawing of consensual adult same-sex relations was discriminatory and violated the rights to equality, privacy and dignity set forth in the Indian Constitution. The Attorney-General has said before the Supreme Court in March 2012: “The Government of India does not find any error in the judgment of the High Court and accepts the same”. International law is unambiguous. UN Human Rights Committee – the expert body that oversees the implementation of the International Covenant on Civil and Political Rights – has said that laws used to criminalise private, adult, consensual same-sex relations violate rights to privacy and non-discrimination. It is particularly disappointing that in the face of all this the Supreme Court overturned this and ruled that Section 377 - which criminalises “carnal intercourse against the order of nature”- was constitutionally valid. Doubly so because the Supreme Court has been at the forefront of giving new meaning and depth to our constitutional framework of rights.
A very strong case can be made to refute the argument that human rights are a Western concept, and this judgment is about protecting Indian cultural values and indeed the Attorney-General has said (before the Supreme Court) “The introduction of Section 377 was not a reflection of the existing Indian values and traditions; rather it was imposed upon the Indian society by the colonisers due to their moral values”. We must not forget that we have a legacy going back to Asoka of respecting the rights of all citizens to be treated equally before the law.
But to debate this issue in a nationalistic or cultural or religious frame is to chase the proverbial red herring and would be a grave mistake. This is not a religious or a cultural issue. It is a simple issue of protecting the human in all of us, of ensuring that prejudices do not get enshrined as law and of ensuring that it does not continue to expose lesbian, gay, bisexual and transgender people to harassment, exploitation humiliation, cruel and degrading treatment at the hands of the law enforcement machinery.
However, not all is lost. The Supreme Court has put the onus on the government to take legislative steps to amend the law and decriminalise same sex conduct between consenting adults. And law minister Mr Sibal has acknowledged that it is indeed up to the government, and that his government would bring this amendment before Parliament. What is less reassuring is the fact that he is not committing his government to this course of action. This is particularly ironic given that the same government quoted the Delhi High Court judgment at the UN Human Rights Council to bolster India’s image as a nation where human rights are progressing.
There is a special urgency to this issue now. Since the Delhi High Court judgment, thousands of LGBT people have claimed their rights and have “come out” and asserted their sexual identity. This re-criminalisation could expose many of them to be discriminated against. Can the Government guarantee that an employer does not use this judgment to terminate the services of an employee on the basis of this judgment? Can the Government guarantee that individual policemen would not use this judgment to inflict their personal prejudices on members of the LGBT community?
It is imperative that the government loses no time. The government of India has said that it is in favour of decriminalising homosexuality. Now is the time to act on its word. Parliament must immediately pass legislation to restore the rights and freedoms that have been denied today. The government needs to commit to the amendment of Section 377 with the same energy and urgency that it has mustered for other rights-based legislation such as the Food Security Act. To postpone this action would be unconscionable.
The author is Chief Executive of Amnesty International in India.