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Gay order: law vs public morality

The Delhi High Court’s verdict legalising homosexuality has triggered an intense debate on a subject considered a taboo in conservative Indian society. Satya Prakash reports.

delhi Updated: Jul 10, 2009 01:01 IST
Satya Prakash

The Delhi High Court’s verdict legalising homosexuality has triggered an intense debate on a subject considered a taboo in conservative Indian society.

The landmark verdict has sharply divided the society. While freedom-loving people in general have welcomed the verdict, religious leaders have opposed decriminalisation of homosexuality and demanded restoration of the archaic Section 377 of the Indian Penal Code to check “deviant behaviour”.

Interestingly, the political class seems to be confused. Some political leaders do have spoken against the decision, but most parties are yet to spell out a clear stand on the issue that could offend the sensibilities of ordinary voters.

The UPA government, which has successfully avoided taking a stand so far, will now be forced to articulate its response before the Supreme Court, thanks to a petition by an astrologer against the verdict.

Whatever be the outcome of the appeal, the high court verdict is historic for many reasons.

First, it accords primacy to individual liberty and privacy under Article 21 of the Constitution over perceived larger interest of the society. The verdict strengthens the recent trend of giving primacy to individual freedoms that has emerged from some of the most controversial judgments of the Delhi HC, including the one quashing on-screen smoking ban.

Second, it draws a Lakshman Rekha for the State, which now cannot peep into the bedroom of consenting adults on the ground of their preference for “unnatural sex”.

Can the State, society or religious leaders regulate the sexual preference and behaviour of consenting adults in private? The obvious answer is NO. Their role is to provide congenial atmosphere to individuals to make them realise their potential and give the best to the society. Obstructing an individual’s freedom and criminalising his/her intimate moments cannot help to achieve this goal.

Homosexuality did exist in Indian society before the verdict. The court did not invent it. The only implication of the verdict is that a person cannot be treated like a criminal for his/her sexual preference.

Recent scientific research has found that homosexuality is normal behaviour and, therefore, criminalising it would be cruelty to homosexuals. The verdict is about being tolerant to the sexual minority and treating them with dignity.

An attempt is being made to build a campaign against the verdict on the ground of morality. What is forbidden in religion need not be prohibited in law. Morality cannot be a ground to restrict the fundamental rights of citizens. Supposing, there is a conflict between public morality and law, the latter based on constitutional morality must prevail.