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SC makes history, but ‘gay’ prejudices linger

The author is a Delhi-based commentator and analyst
Published : Sep 7, 2018, 7:03 am IST
Updated : Sep 7, 2018, 7:03 am IST

The LGBT community would want to rightly press on with the logical implications, leading to issues of gay marriage, adoption and inheritance.

LGBTQ community members celebrate after the Supreme Court verdict which decriminalises consensual gay sex, in Mumbai. (Photo: PTI)
 LGBTQ community members celebrate after the Supreme Court verdict which decriminalises consensual gay sex, in Mumbai. (Photo: PTI)

The sense of relief and happiness felt by the LGBT community over Thursday’s verdict by the Supreme Court Constitution Bench headed by Chief Justice Dipak Misra that same-gender relationships in privacy does not fall foul of Section 377 of the Indian Penal Code. There are legal dimensions to the issue that need to be considered with care and a sense of responsibility. As of now, Section 377 stays but it protects same-gender couples from police and social harassment. The simplified version that homosexuality has been decriminalised and that Section 377 has been quashed is both right and inaccurate. The euphemism that the section has been “read down” is nearer the truth. It is necessary to remember that Section 377 remains on the statute book, but it cannot be used by the law enforcement authorities and social vigilantes to harass same sex couples as they have done all these years. It also means that Section 377 will be used to protect vulnerable children, a problem that the liberal progressives pretend does not exist. That is why the court was insistent on how the law will not apply to consenting individuals over what they do in privacy.

The court, it seems, has rightly taken the strictly legal and constitutional view that the fundamental right to life includes sexual rights and the right to privacy. It is an unexceptionable view, which would be praised as a progressive view from what many would have considered the conservative bastion. It is interesting to recall the judgment of the United States Supreme Court on the issue of same-sex marriages has taken a cautious view. Chief Justice John Roberts, a known conservative, had said that it was not for the court to set the social agenda.

It should be inferred that the Supreme Court’s Thursday verdict is not taking a position on homosexuality. What it is saying is that legal penalties cannot be laid on individuals for their sexual preferences because they infringe on fundamental rights. CJI Misra’s view that “popular morality cannot dictate constitutional rights” is the crux of the legal argument. The court’s plea against removing prejudice, however, falls beyond the legal ambit of the issue.

Juvenile liberals must rein in their saturnalian tendencies because it is a serious matter for those involved — the LGBT community and the rest of society. Each would have to come to terms with the other, and respect each other. This will take time to become the norm, and this will require serious thinking from everyone on how to accept this diversity. It is possible to maintain social harmony if differences are recognised and respected, and agitprop strategies are avoided. A majority of the LGBT community are aware of this delicate social balance, and if left to themselves they will work it out. The irrepressible immaturity of progressive liberals should not be taken as the yardstick for the issue at hand. Society is conservative, and it moves at its own pace. At the same time, society is adept at accepting changes because that is how societies survive and thrive. The enthusiasm of the crusaders for the rights of the LGBT community is to be appreciated and they should keep at it in their own way. But it would be better for all if they realise that even as they had won the space for their point of view, they may have to leave space for other views within the confines of the law.

The sexual mores of a society cannot be legislated, nor can they be shaped by judicial verdicts. As society adjusts to its new and evolving norms, the issues they throw up will need appropriate legislation and appropriate judicial interpretation; and then the appropriate jurisprudence will emerge. The clash between the new and old is the norm and it should be allowed to play out. Any attempt to silence and intimidate contrary opinions will not be helpful. This is the lesson that conservatives must learn from this — that you cannot suppress things which you do not agree with.

The LGBT community would want to rightly press on with the logical implications, leading to issues of gay marriage, adoption and inheritance. And the courts will have to apply their mind to each of the issues and deliver verdicts which defend and protect the constitutional rights of these individuals. And these questions are not going to be sorted out in a jiffy, which is what the simple-hearted liberals would want.

There is also the need to accept the reality that the issue of homosexuality is not an ideological one, where the enlightened liberals stand up for the LGBT rights and the right-wing reactionaries are opposed to it. The sexual preference questions are spread across the political, social and religious spectrum. And each of these sections will have to face up to it in their own way. The Christian Protestant churches in Europe and America are slowly coming to terms with it. The Roman Catholic Church is still struggling with it. Homosexuality is prevalent in Muslim societies across the world, and the struggle is still on. In Asian societies, from India to Japan, sexual mores, though conservative, are also pluralistic. In India, the problem was the colonial law. Orthodox Hindus, Buddhists, Taoists, Confucians and Shintoists have no stated position on the matter. This does not mean that there is no prejudice.

It is unreasonable to expect that the tone of the debate between the opposing sides will remain rational and civilised. There will be invective and disinformation. The Supreme Court’s verdict has clarified the basic issue that individuals have an inalienable right to their own sexual preferences and in a liberal democratic society governed by rule of law, the LGBT community can’t be shunned, ostracised and denied their civic rights. This is as big a victory for the LGBT community as the court’s judgment on triple talaq was for Muslim women.

The Supreme Court has stumped its liberal critics time and again. The verdict on Section 377 is one of them.

Tags: lgbt community, supreme court, section 377