Sober reality awaits those who are exulting over the decriminalisation of homosexual relationships between consenting adults by the Supreme Court on Thursday by a five-judge Constitution Bench. Striking down a 156-year-old British-era provision in the Indian Penal Code marks only a small first step towards gaining society-wide acceptability and robust legal protection for the LGBTQ community. India has demonstrated time and again that society’s acceptance of social reform rarely flows automatically from legal prescriptions alone. Consider that several prominent politicians have openly spoken derisively of homosexuality in the past. So much depends on the rapidity with which legal and political institutions down the line and the security apparatus in the states enforce this new stricture.
LGBTQ activists will be the first to acknowledge the uphill trudge ahead — the debate has been 20 years in the making. This exercise will involve 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.
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.