The Supreme Court's knock over of the historic July 2009 decision of the
Delhi High Court, which had legalized private sexual relations between consenting adults of the same sex, is, in one word, retrospective.
Firmly officially, the SC's argument that the legal authority of Section
377 of the Indian Penal Code – which comprises gay sexual relations
within the range of 'unnatural sex' and lays down harsh sentences – does
not permit it to make legal such sexual relations, may be literally
correct. But it appears more a case of shifting the blame to the
government and Parliament in times when questions on judicial outwit
have been raised. At the very least, this decision, placed next to the
Delhi High Court's 2009 one, which stressed equality, and sought to
defend the rights and dignity of Lesbian-Gay-Bisexual-Transgender
persons, appears a jump backwards.
When, in a country like India, with its countless existing hierarchies and prejudices, marginalised citizens look for redressal against old or unkind laws, the judiciary must, preferably, present hope. Every face of law is not cast in stone, mostly features dating back to reserved, colonial times. Instead, the law develops in its model of delivering justice as human societies grow and change. Basically, this is the question of the fundamental human rights of agreeable adults, on the basis of the standard of equality and non-discrimination in the Constitution itself.
It has long been accepted, by anyone with a crucial sense, among other things, of science, human psychology and history, that homosexuality is neither unnatural nor abnormal. Harsh laws against it are by now mainly upholding of oppressive, theocratic, and under-developed states. With this verdict, the SC has, by default, put India in that category.
When, in a country like India, with its countless existing hierarchies and prejudices, marginalised citizens look for redressal against old or unkind laws, the judiciary must, preferably, present hope. Every face of law is not cast in stone, mostly features dating back to reserved, colonial times. Instead, the law develops in its model of delivering justice as human societies grow and change. Basically, this is the question of the fundamental human rights of agreeable adults, on the basis of the standard of equality and non-discrimination in the Constitution itself.
It has long been accepted, by anyone with a crucial sense, among other things, of science, human psychology and history, that homosexuality is neither unnatural nor abnormal. Harsh laws against it are by now mainly upholding of oppressive, theocratic, and under-developed states. With this verdict, the SC has, by default, put India in that category.
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