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When one speaks of dark moments in the justice system of liberal democracies, two cases immediately come to mind. The first one dates back to 1857—the infamous Dred Scott case where the US Supreme Court denied the right of equality to blacks. The second is the Indian Supreme Court decision in the ADM Jabalpur vs Shivakant Shukla (1976). In the widely censured judgement, the highest court of the land backed away from protecting the fundamental rights of citizens against the Emergency imposed by then prime minister Indira Gandhi.

The Supreme Court’s judgement in the Suresh Kumar Kaushal and another vs NAZ Foundation and others (2013) can be squarely placed in this list. Overruling an earlier progressive judgement delivered by the Delhi High Court, the Supreme Court upheld Section 377 of the Indian Penal Code (IPC), which penalizes any “carnal intercourse against the order of nature".

While the vague verbiage puts into suspicion all kinds of intercourse except the one intended to procreate, it especially subjects the community of gays, lesbians, bisexuals and transgenders (LGBT) to a great deal of harassment and injustice. Outlawing homosexuality also increases the risk of HIV among the LGBT community by preventing access to advisory, educational and medical care.

After rejecting the review petitions, the Supreme Court has a last chance—it will hear a curative petition on the matter in an open court on Tuesday—to redeem its image.

Even though the 2013 judgement is replete with flawed reasoning and legal arbitrariness, two of the issues raised in it need to be dealt with forthright. One, the court left it upon Parliament to repeal Section 377 if required. Even though the Supreme Court has been repeatedly—and justifiably—accused of transgressing into the domains of legislature and the executive, it baulked at the task of quashing a Victorian relic of a law that stands in direct contradiction with the fundamental rights of equality and liberty.

Pratap Bhanu Mehta, an eminent constitutional scholar, summarized the “howlingly limited moral imagination" of the Supreme Court in an article for The Indian Express: “It (the judgement) gives credence to those who have long suspected that the court’s professed sympathy for the powerless is a mere abstraction it wields to enlarge its own power; it does not have the warmth of real humanity behind it."

Two, the most retrograde argument that the Supreme Court made for not abrogating Section 377 was: “...in last more than 150 years, less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires..." Even if a single person was prosecuted under this section, this number is one more than it ought to be.

While the Supreme Court did indeed let down the country, the politicians have done no better. John Paul Stevens, a retired associate justice of the US Supreme Court, wrote on the Dred Scott case: “...the only good thing which can be said about that case is Abraham Lincoln’s criticism of it, which, in his famous debates with Stephen Douglas received nationalist attention, and helped get him elected President of the United States." No leader with a substantial political heft in India has shown Lincoln’s vision.

To be sure, Congress member of Parliament Shashi Tharoor introduced a private member bill to read down Section 377 during the last session of Parliament. There have also been stray remarks made in support of gay rights by some members of the ruling Bharatiya Janata Party, including finance minister Arun Jaitley. But the subject largely remains a taboo for India’s political class. Tharoor’s initiative was not just shot down, but was also met with lewd and depraved comments from some members of Parliament.

A conservative and rigid interpretation of religious texts further fortifies the existing law. Liberal democracies around the world, however, are increasingly embracing modern and liberal principles in upholding equality before law despite the opposition mounted by the Church and other religious institutions. Pope Francis had signalled an open and accommodative stance towards gay rights before going back to a more ambiguous stand. The religious texts of Hinduism, contrary to the claims of some reactionary elements, are not just open to homosexuality but even treat gender as a fluid concept.

The Supreme Court will do well to alter its stance on Section 377, not just for the LGBT community but also for its own institutional legacy.

Should the Supreme Court repeal Section 377 of the IPC? Tell us at views@livemint.com

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