The Supreme Court’s retrograde decision to overturn the 2009 Delhi High Court verdict that decriminalised gay sex has enthroned medieval prejudice and dealt a body blow to liberal values and human rights. Through its path-breaking judgment in Naz Foundation, the Delhi High Court had laid the foundation for “reading down” and eventually amending Section 377 to decriminalise consensual sex among adults irrespective of gender. While the Union government too came around to the High Court’s view, a politically wary establishment left it to the Supreme Court to decide on the penal provision. In the result, Section 377 — which punishes “carnal intercourse against the order of nature” — is now back in force and hangs over the heads of lesbians, gays, bisexuals and transgenders (LGBT). It was Parliament’s prerogative to amend Section 377 in tune with the social circumstances, declared the court — in a show of restraint that is uncharacteristic of its attitude in recent times. The court has stepped in wherever the executive had failed and has not hesitated to read into the constitutionally enumerated fundamental rights to life and to equality an expansive set of human rights including the right to education, the right to work with dignity and the right of prisoners to humane treatment. That is all the more reason why it should not shy away from correcting a centuries-old law and an outdated mind-set that offend against basic rights and human dignity.
Changes in law have come about both by legislation and through the judiciary’s constitutional interpretation. The Supreme Court bench has shut the door to the judicial route to bringing the law in line with fundamental human rights. It is strange that a decision involving a major constitutional issue and the hard-won rights of large sections of the socially oppressed should have been decided by a two-member bench rather than by a larger Constitutional Bench. Whether a judicial correction is still possible in the near future is a moot question. The legislative route to decriminalising gay sex would seem to be problematic in this election season both because the issue may not be accorded priority and also because it may be difficult to forge a political agreement. Barring a sudden dawning of a humane sense of fairness all around, Section 377 is here to stay in the medium term with all its horrific consequences. If harassment by law enforcement agencies drives sections of the LGBT community underground and makes them terrified of disclosing their orientation, it would have serious public health consequences as well, particularly in the fight against AIDS. Above all, it is a test of humane values, fairness and dignity in a society. It is important that institutions of the state acknowledge the importance of these values.