How is it a crime? Who is the victim?
The ruling by our Supreme Court making consensual same-sex conduct between adults a criminal offence marks a black day for freedom in India
This decision 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. This decision 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. It is particularly disappointing that the Supreme Court overturned this and ruled that Section 377 - which criminalises “carnal intercourse against the order of nature”- was constitutionally valid.
A very narrow reading of our constitution indeed. This is especially surprising and disheartening because the Supreme Court has a substantial track record of being at the forefront of expanding the space for human rights in the country through a progressive interpretation of our constitution. 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?
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 colonizers due to their moral values” 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.
It is unfortunate that this issue of the most basic constitutionally guaranteed freedoms of equality, dignity, privacy and freedom is being portrayed as a religious and a cultural issue. It most certainly is not. 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 the 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.
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.
The government of India has said that it is in favour of decriminalizing 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. I am dismayed but not disheartened. This is but a temporary set back. Justice is on our side, History is on our side. The movement will win.
- The author is chief executive, Amnesty International India