Specs Of The Spectrum
It seems that the meaning of the term has decayed from over-usage and frequent misuse. However, historic is the only word to describe the verdict on homosexuality delivered by the Indian Supreme Court (SC) on September 6, 2018. As far as the pitch, tone, voice, feeling and language are concerned, the verdict is a historic one! While delivering the verdict, all the five members of a SC Bench made clear that the Indian Constitution could not (and should not) consider homosexuality as an offense or crime.
Chief Justice of India (CJI) Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra unanimously announced their decision, saying: “Consensual sex between adults in a private space, which is not harmful to women or children, cannot be denied as it is a matter of individual choice. Section 377 results in discrimination and is violative of constitutional principles.” They further announced that it isn’t a matter of legal dispute and we should respect the Constitution. According to the Bench, the Constitution – which guarantees the individual rights – should safeguard a person’s very personal right at any cost. The SC Bench not only defanged the British-era Section 377 of the Indian Penal Code (IPC), which deemed that gay sex is a punishable offence, but also announced that it would no longer be an offence under Section 377 to engage in consensual gay sex in private. Gay sex cannot be deemed to be an offense, if we respect civil rights, stressed the five judges.
For his part, Justice Malhotra said: “History owes LGBTQ community an apology. Members of LGBT community and their family members are owed an apology from society for being denied equal rights over the years.” This statement is strong enough to break the centuries-old chain and stigma. Naturally, the verdict spread a rainbow in the Indian sky.
The toughness of the verdict has assured all the section of Indian people that the highest court would always remain committed to ensure and protect their fundamental rights. In the past, the SC had tried to explain the concept of personal space, thus, rising a serious question on the legality of Section 377 of the IPC. On September 6, the five-member SC Bench opined that Section 377 was one of those Indian laws, which shamefully bear the legacy of the colonial era and a modern state could not neglect the right and dignity of its people.
In Victorian era, Britain and Europe used to consider homosexuality as a crime. So, the British India had to accept the same concept and to inherit the legacy of the British law (read illusion) so many years ago. The British rulers had tried to influence the ancient Indian social practices by injecting the European concept of morality. The Indians fell into the trap and abandoned their own culture according to which homosexuality was not at all a crime. Although Britain had scrapped the law in the 20th Century, Independent India took 71 years to bin the law!
The SC made a truly good and healthy decision and the removal of the suppressing unnatural law of the colonial era is one of the most progressive steps taken by the Indian judiciary. Perhaps, this will stop many fake marriages between a woman and a man on the basis of Semitic religious models prescribed by the West. Now, the Indian society will allow people to lead a more honest, open, transparent, authentic and natural lifestyle. The Indian society has made that big leap and brought in equality (into the society) at the bottom, if not at the top.
In India, many women are forced into a marriage with gay men because the society doesn’t appreciate direct straightforwardness. Many men, too, suffer because a lot of women have traits of the lesbians. However, it was not the case in India in the past. In fact, the ancient Indian literature portrayed the concepts of homosexuality and polygamy in a positive manner. So, it would be wrong to consider the latest SC verdict as an attack on the Indian culture. On the contrary, the verdict tore away the coat of European morality on the Indian culture.
Indeed, it’s a memorable moment in the history of civil rights, as the LGBT community in India has managed to win the basic right after a long struggle. It becomes important for the Indians to realise that sexual orientation of a person is his/her personal choice (or preference). And by recognising the gay sex, the Indian judiciary wrote a new chapter in the country’s civil rights movement. It is expected that the recognition of third gender will change the traditional concept of sex in the South Asian country.
With this verdict, the judiciary sent a strong message to the society: the Constitutional principles cannot be suppressed by the logic of social practice or the concept of the majority or through referendum. Also, the judiciary advised the people not to ignore the belief of a small group.
Perhaps, the verdict will show India the way to resolve other major (social) contradictions in the coming days! In this connection, one may be reminded of the oft quoted crude malapropism – the rainbow exhibits the colours as seen in the rectum.
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