As an Indian American, I've always looked upon India as a progressive democracy and a rising economic power, but today I am very disappointed to know that India is making international headlines for the wrong reasons--denying human rights to its sexual minorities. But lest I be misconstrued, I am no gay rights activist. In fact, I believe other causes such as environmental protection, child labor, dignified living for the destitute and so on are much more imperative than LGBT rights. However, I also firmly believe that adults must be free to make their own lifestyle choices without interference by the government, even lifestyle choices the majority of the society does not approve, as long as they do not transgress on the liberties of other people.
On December 11, a Supreme Court bench headed by Justice JS Singhvi, dubbed the sexual minorities of India, a community of over 2.5 million, as a minuscule of the population, and criminalized them with a single stroke of the pen. The LGBT community that had been ostracised by the Indian society for decades gradually begun integrating into the mainstream society, after the Delhi High Court struck down section 377 of the Indian Penal Code as unconstitutional. Today once again, by restoring the law against homosexuality, the LGBTs have been relegated as second grade citizens. It is true that the Supreme Court did not restore the law on moral grounds but because it did not find the law contrary to the principles of the constitution. However Justice Singhvi interpreted the constitution in a very conservative way, and strictly by the letter. Although the Indian constitution does not explicitly prohibit discrimination by sexual orientation unlike other grounds such as religion, sex, caste and so on, discrimination by sexual orientation is clearly against the spirit of the constitution as it is directed against an immutable and core characteristic of human personality. Even international law finds discrimination by sexual orientation analogous to discrimination by sex. Nevertheless, the Supreme Court chose to stick by the book definition of sex. If the Supreme Court had indeed felt obligated to restore the law due to a legal technicality, the court should have taken steps to mitigate the psychological and social trauma that the sexual minorities would face by the overnight change in their social status. Justice Singhvi could have restrained the police from enforcing the law as it applies to consensual relations between adults or suspended the law from taking effect for a certain period of time so as to allow the legislature to decide the fate of section 377. His verdict, which just stopped short of criticizing homosexuality on moral grounds, was a total disappointment for India's LGBT population. Delivered on Justice Singhvi's last day as a Supreme Court judge, it earned him mostly brickbats from across the country, but also some accolades from very conservative religious groups.
Justice Singhvi, well known for his integrity has received widespread praise for his tough stand against corruption. He also takes pride in the things of the past and admittedly is not comfortable with modern ways of the present-day world. Were his personal beliefs, which may have had some influence on the judgement, out of touch with the values of today's society? There have been several other instances in India where the judiciary's view (especially on matters pertaining to rape, live-in-relationships and domestic violence) was based on archaic beliefs that are not true in today's world, especially among the youth. Should India reconsider a jury based system like most other democracies?
As a practical matter, India's sexual minorities are unlikely to be actively targeted for homosexual relations. Even before section 377 had been struck down, the law was rarely used to persecute (but was often used to harass) homosexuals. I remember only one case prosecuted under section 377, it was for the rape of a street dog by a Mumbai taxi driver. (To the taxi driver's disappointment, the prosecution turned out to be very generous and charged him with several other related charges as well, including animal cruelty!) Nevertheless, the low prosecution rate should not be an excuse to justify the criminalization of homosexuality. Globalisation, especially the Information Technology industry, has modernized India into an economic hub and a liberal democracy. It is up to the Indian law makers now to decide whether to decriminalise homosexuality and uphold personal liberty or pour cold water on decades of social and economic progress and retrograde to join the echelons of ultra conservative states.
(The author is a Silicon Valley-based software engineer and is interested in criminal justice related topics. The views expressed are personal.)