If personal liberty, freedom and justice are the foundations of this republic, surely tolerance and diversity are its strongest pillars

Nations are born of ideals and ideals are what preserve them. Few Indians would disagree that the ideals behind a diverse and inclusive democracy and society like India are plurality, equality and justice. Yet, every now and then comes a moment when a nation or a society must stand up and defend its ethos.

India’s Supreme Court faced such a moment this week — to review its own flawed judgment upholding a discriminatory Victorian law against “unnatural” sexual acts between consenting adults. The Court’s decision not to review this judgment laid bare not only its lack of concern for minority rights but also its intention not to protect the ideas of justice, liberty, and equality guaranteed to all Indian citizens by our Constitution.

Several questions arise from the stand of the Court. Should the law control and discipline our bodies and our right to choose our sexualities, our right to love? Would you as an Indian allow the state to dictate whom you can love and how you choose to love within the confines of your own private spaces? If not, then how can any court, however supreme, deny this right to some Indians or even one?

The law that this judgment upholds makes criminals of all Indians whose desire for sexual intimacy does not abide by a certain definition, regardless of sexual orientation.

For a moment, let’s consider who gave us this definition. And does it stand up to any scrutiny? We, the argumentative Indians, have never adhered to any particular definition of sexual pleasure. Strangely, the Court ignored the rich and diverse cultural, historical material placed before it to prove that sexual diversity and same-sex love have been an essential part of Indian history. Why was our history, our celebrated diversity, our inclusiveness ignored in this case? Are sexual minorities, any less Indian because they seek the right to love that many may not approve of?

Persecution

Even though this law applies to every Indian, it has primarily been used to harass, coerce and terrorise India’s sexual minorities. There exist countless testimonies illustrating this misuse. By refusing to review an unjust judgment, the Court has strengthened oppressive forces and encouraged intolerance, increasing the fear with which India’s sexual minorities live everyday. How can any court in a democracy allow for the deliberate persecution of a minority? Can our love be so unequal in the eyes of the law?

During the hearings, the earlier bench admitted they didn’t know of any gay people and later termed them minuscule. Well, minuscule or not — we exist. India’s sexual minorities are now a visible part of its mainstream. We work in diverse professions, pay taxes, vote, and abide by the rulebook — like other Indians. We also feel fear, joy and sadness and want to love with dignity and seek happiness — like all other human beings. The Court cannot, on account of majoritarianism or its ignorance or prejudice, deny us our fundamental human right to love and seek happiness. As acts go, this one is truly unnatural.

Perhaps, the Court does not realise that its position on this matter will determine and shape the discourse on not just the rights for sexual minorities but all minorities in India. The Court need only to have remembered the multiple histories of the women’s movement, the Dalit movement, the movements for workers’ rights. Would equal rights ever have been possible for any of these constituencies if ideas of equality, justice and inclusiveness had been dispensed with? Were not ideas of inter-caste or inter-religious marriage radical and socially unacceptable till some time ago? Yet, we did not allow the curtailment of the right to love on the basis of social acceptability. Then why should it be constrained on the basis of sexual orientation?

It was our hope that the Court would introspect and discover in itself the courage to self-correct a regressive and erroneous judgment. Instead, it dismissed us tersely without explanation or compassion. It has upheld an unjust colonial law inserted into the Constitution by a prudish colonising power. By doing so it takes away hope and dignity, making millions into criminals. We are disappointed but not defeated. We are determined to fight every day — in our homes, in our workplaces, on the streets — you will see us everywhere, seeking our right to love. We will not be silenced.

We will also not forget the just and compassionate 2009 judgment decriminalising homosexuality that gave us sanctuary in constitutional ideas of equality and justice, reinforcing the inclusiveness of the Indian state. It will strengthen our resolve to fight till we can love with freedom and dignity. A right the Court could not find the strength and the courage to give to us.

(Chapal Mehra is an independent writer based in New Delhi.)

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