By recriminalizing homosexuality India’s Supreme Court has balked at a historic opportunity to address a significant human rights issue. A two-judge bench reversed a lower court ruling that had in 2009 held as unconstitutional an 1861 law forbidding ‘carnal intercourse against the order of nature with man, woman or animal.’
When the Delhi High Court gave its ruling reversing the horrifyingly regressive 1861 vestige of the British Raj, there was justifiable celebration not just among the gay community but all those who consider lifestyle as a matter of personal right and choice. However, the Supreme Court Justices G.S. Singhvi and S.J. Mukhopadhayay have taken a position that may described as somewhat constructionist and reversed the earlier ruling.
On the face of it, the two judges’ ruling that the earlier reversal by the lower court was “constitutionally unsustainable” might make perfect legal sense. Add to that the point of view of the bench that any change in Section 377 of the Indian Penal Code (IPC), which criminalizes gay sex, should rest with India’s parliament and you have a legally rational argument. Viewed from a purely constitutional point of view the Supreme Court ruling may seem immaculate. They seem to be saying that it is not the court’s job, even if it happens to be the country’s highest, to creatively interpret or amend laws but to merely obey and enforce them as they are written.
It is hardly for me to say whether the two judges were motivated by a constructionist view of the matter or hidden behind that was their own personal disapproval of gay rights. Either way it does not necessarily reflect the popular sentiment in India which in recent years has moved in favor of gay rights. In any case my years of having reported on socio-cultural issues I can say that Indian society has, at best, been either accepting of or, at worst, benignly indifferent toward homosexuality. Its criminalization at the height of the British colonial rule was a terrible aberration which has scandalously remained on the statute books over a century and a half later.
The two justices have lobbed the matter back to the legislature and in the process arrested the growing march of gay rights. I am not sure if India’s parliament has the sensibility to view this as a socio-cultural issue important enough to be dealt with at the earliest. Even at the best of times parliamentary discourse tends to be fractious and an issue such as this is unlikely to goad lawmakers into expeditious action. Indian parliament’s calendar of woes is so full most of the time that it would require Herculean political will to put gay rights and reform/repeal of Section 377 of the IPC on fast track. For now, the Supreme Court ruling pushes the country’s jurisprudence as far as gay rights are concerned, right back to the 19th century.
As always it falls on me to synthesize a serious subject, namely the Supreme Court verdict, and a popular, if shallow, television interview show called ‘Koffee with Karan.’ Writing about the show hosted by successful film director and producer Karan Johar I had said this on December 5: “…as part of the format Johar asks his guests what are called rapid fire questions of the kind designed to generate ratings. One such question that Johar reads from his smartphone goes like this: "At gunpoint if you were forced to have a gay encounter (with a woman/man) who would you prefer it to be?"
The question has to be viewed in the context of innuendoes, nudge-nudges, and wink-winks about Johar’s own sexual orientation. It makes zero difference to me what that is but it is necessary to contextualize the question. What strikes me about the framing of the question is that Johar prefaces it with “At gunpoint” as if there is no other possible way any of the celebrities on his show might consider gay love. I am fairly certain this is not the best way to advance the gay agenda, if that is the implicit intent behind the question.”
In the aftermath of the Supreme Court re-criminalizing homosexuality Johar’s question suddenly becomes accurate because for now that may be the only defense available to those who are charged under Section 377 and potentially sentenced to ten years in prison. They might have to say that they were forced at gunpoint to have gay sexual encounter. So careful what you wish for.