A five-judge Constitution Bench on Thursday. demolished a 156-year-old British-era provision in the Indian Penal Code that criminalized homosexuality. It marks only a small first step towards gaining society-wide acceptability and robust legal protection for the LGBTQ community.
Limitation of legislature –
- India has demonstrated time and again that society’s acceptance of social reform rarely flows automatically from legal prescriptions alone and it would require judicial intervention.
- The contempt over acceptance of homosexuality by several political leaders pose a threat to the judgement because the enforcement of the judicial pronouncement depends on the political and security institution of the state apparatus.
- Good thing is that when the government failed to develop consensus upon the issue amongst the orthodox or conservative sections of the society, it pulled down any opposition to the matter in the Supreme Court, paving the way for the abolishment of the draconian law virtually.
Long road to freedom –
- The LGBT debate has been reeling under the carpet since the last 20 years. Enforcement of the provisions would require educating the police, known to be singularly brutal in penalising gay couples.
- Amending civil marriage laws to accommodate same-sex unions would be another immediate requirement — and it is worth recalling that the US Supreme Court passed its landmark judgment legalising such marriage only three years ago, though the issue roiled America for well over a decade.
- Indian courts, which have demonstrated no particular alacrity in defending basic human rights, are unlikely to move swiftly to enforce gay rights despite the enlightened nature of the Supreme Court’s pronouncements.
- It is notable that no major politician, much less the prime minister, has ever spoken on the subject publicly for fear of alienating the kind of conservative opinion that objected to the screening of Deepa Mehta’s Fire two decades ago.
- No less noteworthy is the fact that no politician from the ruling party has chosen to comment on Thursday’s judgment, a curative petition that overturned a 2013 apex court judgment that overturned a 2009 Delhi High Court judgment.
Significance of the judgement –
The importance of Thursday’s ruling, however, goes far beyond merely decriminalising homosexuality. The Bench’s arguments for doing so demand careful reading for their larger implications.
- The first is to assert the nature of homosexuality as a natural “biological phenomenon”, and not a mental disorder. Nor are they a “minority”, as an earlier apex court judgment had held. Homosexuality cannot be the basis for discrimination, the apex court added, underlining the fact that homosexuals have fundamental rights.
- The second is reinforcing individual choice, including sexual choice, and the right to privacy. Both rights have been increasingly devalued in the national political discourse lately, with group identities subsuming individual rights, love jihad being a prime example.
Economic participation –
- At a time when all the political parties are pulling down their hands from progressive social reforms, this ruling could be a good opportunity for India Inc to establish some progressive credentials.
- In 2015, some 379 American corporations and professional organisations — including Google, Apple, Goldman Sachs, Morgan Stanley and Walmart — signed a “friend of the court” brief for the US Supreme Court when it was hearing a case for the legalisation of same-sex marriage. Their contention was a practical one: That their inability to extend benefits to same-sex couples restricted recruitment and access to a wider pool of talent.
- It is not that the Indian corporate sector is completely heterosexual but a glass ceiling exists in terms of intolerance against the LGBT community which discourages them from seeking employment opportunities with them.
In the absence of political support, it is the duty of all of us as a society, including the corporate sector to demonstrate our resolve towards social reforms that we all need. This is an opportunity to make the head start.
Source – Business Standard
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