Section 377 of the Indian Penal Code (IPC) almost reads like a medieval edict: “Unnatural Offences—Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
In a long-overdue judgement, the Delhi high court struck down this ban on homosexuality on Thursday. It is about time: Lord Macaulay penned IPC in 1861, and this draconian—and discriminatory—section is hardly relevant in the 21st century.
The government has no business telling individuals what they can or cannot do in the privacy of their own homes. Homosexuals deserve legal affirmation of their lifestyle— which is no more unnatural than other sexual conduct.
The greater concern now is how the court’s judgement will fare. It’s not a surprise that a judicial body affirmed gay rights, and not legislators. Openly supporting gay?rights in?India is likely not politically advantageous, as homosexuals are not a substantial political constituency.
From here, we should watch for a few things. First, opponents of the judgement will likely appeal to the Supreme Court. Legislators could also circumvent the courts altogether, introducing legislation banning homosexuality outright. This was seen in the famous Shah Bano case, when Rajiv Gandhi’s government passed a law bypassing the ruling.
The high court’s 105-page judgement is a delightful read, as it tracks, among other issues, the “peculiar” and “contradictory” affidavits from the ministry of home affairs and the ministry of health—the former supports section 377, while the latter opposes it.
The United Progressive Alliance has outwardly waffled on gay rights. Indian politicians are good at maintaining populist tendencies while dodging claims of being illiberal, especially from foreign audiences. The world is watching India’s stance on homosexuality. Only the courts had the courage to support this reasoned move.
India has finally left the ranks of other homosexuality-banning nations such as Saudi Arabia, Kuwait and some nefarious north African regimes. It would be a shame to regress.
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