On 11 December 2013, the Supreme Court of India declared the ruling of the lower High Court of Delhi invalid and reinstated Sec 377, which the lower court had declared unconstitutional as it violated the fundamental right of all LGBT people.
Sec 377 basically criminalizes all sexual acts ‘against order of nature’ i.e all penile-oral and penile-anal sex. Offenders can be arrested and sentenced to a term of 10 years.
The High Court’s decision was challenged on the grounds of protecting morality and Indian culture against ‘western influence’. Ironically this law was introduced by the British during their 200 year Colonial rule of India to protect their women and children from ‘Oriental vices’. Their conservative mindset was shocked by the rich and open sexual culture of India that was evident from all the erotic temple sculptures and the ancient and worlds most popular sex manual the ‘Kamasutra’. While this archaic law was repealed in Britain itself in 1967, India it seems is still unable to shake off its Colonial past.
The biased judgement of the two judges of the Supreme Court is wrong on a lot of accounts. The following points explore the reasoning given behind the judgement:
1) A ‘miniscule portion’ of the population has fundamental rights too. The argument that the law affects only few people does not excuse the court of failing to defend the rights of those few.
2)Only 200 people have been convicted under SEC377. So only 200 people had their rights violated by the system responsible for ensuring justice. And this is negligible because its not the duty of the court to dispense justice to 200 people?
3) Only 200 people may have been convicted under SEC377 but this law has been used by police to extort thousands of LGBT individuals. Is it not the duty of the court to remove a law that allows the exploitation of innocent public?
4)Public morality cannot be the basis of determining the Constitutional validity of any law. If so there would be no need of a court, public vote should be used to decide every trial. The court failed its duty in passing the buck to the Parliament
5) The argument that SEC377 does not criminalize any community, just some acts is redundant. All leading psychiatric and medical associations has already discredited the theory that homosexuality is a disease or that sexual orientation can be changed. The current president of the World Psychiatric Association, Dr. Dinesh Bhugra is Indian and gay himself. So by criminalizing sexual acts that are inherent for carnal intercourse for homosexual people the court is forcing them to choose a life of celibacy or be jailed.