‘The lives of female Hindoo subjects should be henceforth more efficiently protected; that the heinous sin of cruelty to females may no longer be committed, and that the most ancient and purest system of Hin-doo religion should not any longer be set at nought by the Hindoos themselves.’
Replace ‘female Hindu subjects’ with ‘homosexuals’ and the exhortation for a return to an uncorrupted religious past with that of a return to pre-British India law, and that is essentially what the Supreme Court’s reaction has been to a group of petitions challenging the Delhi high court’s July 2, 2009, verdict decriminalising sexual intercourse between consenting adults of the same sex. The statement with which we open this editorial was made by 19th century social reformer Rammohun Roy in 1829 to the then governor general of India in response to the prohibition of Sati (the Hindu practice of widow-burning) the same year. Like Roy, the apex court bench also underlined the fact that a law had been corrupted to target and harass a particular group of the citizenry.
In the case of Sati, it was Hindu Brahmins who established and propagated a false and heinous ‘law’. In the case of homosexuality being illegal, it was, as the court reminded us, the enactment of the Indian Penal Code in 1860 by the British that introduced same-sex ‘carnal intercourse’ as a crime.
But what was commendable was the court’s questioning of the very term ‘unnatural’ when applied to homosexuality. In an indictment against narrowmindedness that comes dressed as righteousness, the bench pointed out the changing nature of what societies deem ‘unacceptable’ and ‘acceptable’. The question of what is ‘natural’ and ‘unnatural’ itself is in constant flux. At a time when artificial fertilisation, single parents, live-in couples have become increasingly acceptable, the notion of same-sex relationships are also becoming less scandalous.
The law, in this respect, has to catch up with those changing values. But the landmark 2009 judgement of the Delhi high court has a more fundamental appeal. The use of Section 377 to harass homosexual citizens who have broken no other law except that of ‘engaging in same-sex intercourse’ was repugnant in its targeting of a people simply because of their sexual orientation.
Even if Indian social norms prior to the British criminalisation of gay sex had been hostile towards homosexuals — which the court points out that they weren’t — in keeping with the fundamental laws of humanity, consensual same-sex intercourse should be decriminalised all across India. Apart from righting a wrong, that single act can become a shining example of a loud, narrow-minded minority being stopped from foisting what they think is acceptable or not on the rest of us.