Forward march

The decision by the Delhi High Court to decriminalise
homosexuality by declaring the controversial Section 377 of the Indian Penal Code “violative” of Sections 21, 14, and 15 of the Constitution is a judgment with far-reaching implications. It strikes down a 149-year-old law, dictated by prudish Victorian values during the British raj. Similar laws were repealed in Britain a long time ago.

The struggle to scrap Section 377 got its biggest fillip from the health community, which found that the fight against AIDS was severely hampered by the fact that homosexuals were
unwilling to come forward and declare their sexuality for fear of criminal charges against them. This is a good enough reason to overturn the harmful provisions of the law.

But the high court in fact has taken the high moral ground, which raises the level of its judgment to that of fundamental rights. By finding Section 377 discriminatory by its targeting a section of people for their sexual preferences, the court has managed to move India forward. Society is changing and with it the laws must change too. There is a need to recognise that a section of our society cannot be stigmatised to the extent of being labelled criminals for their sexual preferences, especially if they are consenting adults.

Much of the world has moved on from the attitudes prevalent a century ago. The court has also been forward-thinking in ensuring that the provisions of section 377 stand when it comes to minors. This will end fears of child rights activists who felt that paedophiles would benefit from the repeal of the law.

Of course, there will be reactions against this judgment. Religious groups — Muslims, Christians and some Sangh Parivar organisations — have protested. But while their right to a point of view is acceptable, to bring religion into this debate is wholly unnecessary—this has to be a social and legal debate.

The gay community is already celebrating, but this is but the first step in a long battle ahead. Social mores do not alter overnight, but eventually they will. The very fact of the judgment demonstrates that there is rethinking on the issue. The government had begun to apply its mind to decriminalising homosexuality though there was some difference of opinion among the ministries on the subject. This judgment should provide clarity on the future direction of this issue.