In a classroom in Norway late last year, the Ugandan advocate for the rights of sexual minorities, Frank Mugisha, made a profound observation: “Homosexuality is African; homophobia is not." What Mugisha said in Bergen applies just as much to India. Consensual relationships between two adults of the same sex had always been part of Indian society; all you had to do was to look at classic art and sculptures on ancient temples.

Section 377, which criminalized sexual acts “against the order of nature" was part of the Indian Penal Code drafted by Thomas Babington Macaulay after the British Crown took over the administration of India from the East India Company. The same Macaulay who wrote the famously paternalistic Minute, whose aim was to produce “a class of persons, Indian in blood and colour, but English in taste, opinions, in morals and in intellect". The same Macaulay, who with profound contempt, ignorance, and arrogance, could write: “A single shelf of a good European library was worth the whole native literature of India and Arabia." Such is the man whose law is being defended by some in India who are clothing themselves in the garb of native values. Irony dies.

In 2009, the Delhi high court judges A.P. Shah and S. Muralidhar rightly saw Section 377 as an affront on equality and dignity, and ruled that the section, “in so far as it criminalises consensual sexual acts of adults in private, is violative of Articles 21 (Right to Protection of Life and Personal Liberty), Article 14 (Right to equality before law) and Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) of the Constitution."

Unfortunately, in 2013, the Supreme Court overturned the decision, saying, “We hold that Section 377 does not suffer from the vice of unconstitutionality and the declaration made by the division bench of the High Court is legally unsustainable." The Supreme Court did say that Parliament could amend the law but, despite Congress member of Parliament Shashi Tharoor’s valiant attempts, the matter could not even be discussed in the House.

Explaining their rationale in the court, Justices G.S. Singhvi and S.J. Mukhopadhaya, said, “The high court overlooked that a minuscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years, less than 200 persons have been prosecuted for committing offence under Section 377."

But the constitution exists to protect the rights of every individual and every group, however small, however insignificant or “minuscule" a minority; and the fact that “less than 200" people were prosecuted under the law was cold comfort to those who had been prosecuted under that law. The existence of that law provided the opportunity to law enforcement officers to threaten, shake down, bully or assault two adults of the same sex whom the officers might catch in a moment of intimacy.

Ask people who are adult lesbian or gay, and you will hear horror stories of the police threatening to “expose" them by calling their parents and telling them about their sexual orientation, unless a bribe is paid. Section 377 gives the police officers that authority. The section is a relic of Victorian morality that sullies the Indian statute.

The path-breaking Supreme Court verdict in August 2017, which made the right to privacy a fundamental right, created a vital opening. The court explicitly said that sexual orientation was part of privacy, that discriminating against an individual on the basis of sexual orientation is “deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights." In effect, it brought back the rights-affirming conclusion of the Delhi high court in 2009.

Earlier this week, the Supreme Court brought Indian laws closer to the 21st century—and in line with India’s pre-Victorian ethos—when a three-judge bench headed by Chief Justice Dipak Misra ruled it was time to re-examine the constitutional validity of Section 377, referring the matter to a larger bench. “A section of people or individuals who exercise their choice should never remain in a state of fear," he said. “Choice can’t be allowed to cross boundaries of law, but confines of law can’t trample or curtail the inherent right embedded in an individual under Art 21 of the Constitution."

Choice is important, but it is worth stressing that sexual orientation is not a matter of choice. It is a part of an individual’s identity she or he is born with; it is not an acquired trait (the way religion can be). Quacks and religious fundamentalists believe homosexuality can be “cured", as if it is a disease; as if it is something an individual chooses to do against his or her “natural" orientation and needs “fixing". Indulging such ideas is akin to giving space to snake oil salesmen who offer to cure cancer. And yet, ratings-hungry television networks are giving platform to modern-day Macaulayites like Subramanian Swamy, whose thinking on these issues seems to have frozen in 1861. He doesn’t want gays to “flaunt" their sexuality, even as he has been flaunting his regressive ideas for what seems like nearly a century.

The Supreme Court should constitute the larger bench at the earliest opportunity so that Indian law becomes part of the modern era.

Salil Tripathi is a writer based in London.

Comments are welcome at salil@livemint.com. Read Salil’s previous Mint columns at www.livemint.com/saliltripathi

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