EDITS | Tuesday, July 14, 2009 | Email | Print | 
A landmark judgement
A Surya Prakash
The path-breaking judgement of the Delhi High Court invalidating a part of Section 377 of the Indian Penal Code in so far as this statute criminalises consensual sex among adult males in private has raised the hackles of religious leaders and conservative heterosexuals across the country. Those who are troubled by this judgement say that it will wreck family life and that it is yet another example of our blind imitation of the decadent West. Since the majority of the people are heterosexual, they find homosexuality to be repulsive. They are horrified at the thought of a man having sex with a man or a woman with a woman and would, in all probability, view same-sex relationships as an illness. The majority, therefore, sees nothing wrong in the IPC provision that views sodomy as a criminal act. Baba Ramdev is actually echoing the majoritarian view when he says homosexuality is a ‘disease’ that needs to be cured.
However, the problem with this view is that it is repugnant to the grammar of modern, liberal constitutions. Beginning with the second half of the 20th century, courts have enlarged freedoms available to all citizens in democracies by viewing every policy, law and Government statement through the prism of political correctness. More specifically, they have extended the concept of equality to what one may call non-heterosexuals. The idea that societies have the right to discriminate against citizens who have a sexual orientation that is different from the heterosexual majority has been found to be abhorrent by apex courts in a number of democracies. This has resulted in a silent revolution to eject out-dated concepts and inject new meanings to constitutional texts. More often than not, the laws that criminalise homosexual behaviour have been central to this debate. Among the courts which have struck down such laws is the European Court of Human Rights, the US Supreme Court, the Constitutional Court of South Africa and the Human Rights Committee of Australia. Broadly, the opinion of these courts is that “if, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our privacy”.
The Delhi High Court judgement is in line with this thinking. It enables us to dump a politically incorrect aspect in our penal law and belatedly catch up with liberal democracies around the world which have done so much before us. Among these nations are a majority of the states in Europe, Scandivania and Australia. England decriminalised sodomy in 1967 and Scotland in 1980. Northern Ireland followed suit in 1982. The Supreme Courts and other judicial bodies in many liberal democracies have struck down similar provisions. Closer home, even the Supreme Court of Nepal and High Courts of Hong Kong Fiji have declared such laws to be unconstitutional.
All these cases have been cited by Chief Justice AP Shah and Justice S Muralidhar of the Delhi High Court, who delivered this judgement. While the judgement has brought about a rather strange communion among religious leaders (Hindu-Muslim-Sikh-Isai), one must remember that views which are tangential to core constitutional values cannot and should not gain ground.
Several Hindu religious leaders are critical of the court’s decision on the ground that it would destroy our ‘culture’ and family life. The fact that they advance the majoritarian view need not surprise anybody. But, what about the religious minorities? How is it that Muslim and Christian leaders, who are constantly fighting for minority rights, are now ready to join Hindu leaders in order to crush the rights of another minority?
In this judgement, the two judges have made a significant point. They say that “a modern democracy while based on the principle of majority rule implicitly recognises the need to protect the fundamental rights of those who may dissent or deviate from the majoritarian view point”. Is this not the tenet which protects the rights of religious minorities in India vis-à-vis the Hindu majority? Similarly, should we not apply this very principle to protect the fundamental rights of those who ‘deviate’ from the majoritarian heterosexual viewpoint? India is a Hindu-majority nation and Hindus view the adherents of the Abrahamic religions as those subscribing to religions that took birth in foreign lands. These religions have been imported into India. The Muslim and Christian ways of life, modes of worship, culture, etc, is also distinct from the Hindu way of life, modes of worship and culture. Shall we then say that it is ‘natural’ to be a Hindu in India and ‘unnatural’ not to be one?
The Delhi High Court has now turned the spotlight on another minority — the sexual minority. While we celebrate diversity, the Congress party has added a new buzz word — ‘inclusive’ growth. However, possibly because of continuous molly-coddling, leaders of religious minorities in India think that the word ‘diversity’ has just two synonyms — Muslims and Christians — and that ‘inclusiveness’ just means including members of these communities in everything the Government does. The judgement on Section 377 of the IPC is bringing them some home truths. Minority is not just religious minority. There are linguistic, political and sexual minorities in India and they have the same rights under our Constitution as religious minorities.
Obviously, providing space to other minorities does not come easily to religious minorities. The response of the leaders of these communities to this debate is akin to the behaviour of passengers in an unreserved railway compartment. Once they get in, they shut the doors to others, and yet offer lip sympathy to the notion of equality of all railway passengers! It is, therefore, the job of the judiciary to price open the door of this compartment and let other minorities in and this is exactly what the Delhi High Court has done. The time has come for India’s religious minorities to display the magnanimity that they expect from the Hindu majority when it comes to other minorities. We must make peace with the fact that there are an estimated 2.5 million homosexual men and an unknown but possibly small number of lesbians and transvestites in our midst. Transgenders even contest elections and enter legislative chambers. All of them constitute a miniscule minority of non-heterosexuals. To mock and ridicule them is one thing, but to subject them to constitutional inferiority is quite another. In this time and age, homophobia just cannot have constitutional sanction.
We must, therefore, salute Chief Justice AP Shah and Justice S Muralidhar of the Delhi High Court for setting the record straight, for enlarging the meaning of diversity and for taking inclusiveness out of its narrow confines.
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