One day after World Human Right's Day, India’s most progressive and respected institution stained its proud record of protecting and advancing citizens rights - perhaps indelibly. In 2009 the Delhi High Court in an inspired verdict, that decriminalized homosexuality, had said
"If there is one
constitutional tenet that can be said to be underlying theme of the Indian
Constitution, it is that of 'inclusiveness'. This Court believes that Indian
Constitution reflects this value deeply ingrained in Indian society, nurtured
over several generations. The inclusiveness that Indian society traditionally
displayed, literally in every aspect of life, is manifest in recognising a role
in society for everyone. Those perceived by the majority as "deviants' or
'different' are not on that score excluded or ostracised.
Where
society can display inclusiveness and understanding, such persons can be
assured of a life of dignity and non-discrimination. This was the 'spirit
behind the Resolution' of which Nehru spoke so passionately. In our view,
Indian Constitutional law does not permit the statutory criminal law to be held
captive by the popular misconceptions of who the LGBTs are. It cannot be
forgotten that discrimination is antithesis of equality and that it is the recognition
of equality, which will foster the dignity of every individual."
After a long, convoluted appeals
process that stretched four years, the Supreme Court of India overturned the Delhi High
Court’s 2009 thereby re-criminalizing gay relationships. In doing so, the
Supreme Court of India stands apart – in disgraced isolation - from the
judiciary in every other democracy in the world – including developing
countries like South Africa, Nepal, Mexico and Brazil.
In throwing the ball back to the Executive branch, the
judges sought to couch their decision in terms of showing constitutional deference
for the role of the executive. However the SC has never shown hesitation in
striking down central and state laws over the years and has been perfectly
willing to create laws (mostly good) out of thin air (e.g., the recent one banning
criminals from contesting elections). In this particular case, the Indian
government’s final submission supported the repeal of Sec 377 (i.e., supported
decriminalization of gay relationships). This would indicate that the deference
to executive authority was a fig leaf – enabling the justices to render a
regressive and prejudiced decision without overtly appearing to do so. The news
media rightly greeted the ruling with headlines like “SC: Gay sex illegal” and “Gay
Sex is a criminal offense rules Supreme Court” - for once the media’s inability
to handle nuance working in the favour of truth.
While India’s brave community of LGBT activists and their
heterosexual allies will continue to fight for equality – one that they will
doubtless win in the long run; in the short term, this decision does real damage
to the lives of gay people who are out or in the closet. It will expose
lesbians and gays to even more harassment and persecution from the police; give
a fresh institutional cover to discriminatory practices in every aspect of life
– housing, employment among others and could shrink the already rather limited
spaces that the LGBT community has carved out for themselves in public life.
Today, the Supreme Court of India has abjectly failed in its
fundamental duty to protect the fundamental rights of an individual and of
minorities. Here’s hoping justices Singhvi and Mukhopadhyaya will see the
repudiation of their prejudices by the same Supreme Court in their lifetimes.