The verdict was blown out of proportion, even by the rational adherents who now seek pleasure in venting off their disgust impromptu, without investing minuscule chunk of their time, least to say applying logic, to converge to a balance conclusion; this as a result of rushing to the issue perfunctorily in order to compete among the peers. But in liberal democracy with ever increasing assertion of rights, anyone can exhibit their views and opinion under the garb of “freedom of speech and expression”; wrapped under the blather.
Modern pundits rooted in medieval mindsets played the card of culture and religion as always their potent act of defence; placing examples from religious scriptures which mentioned such an act of sexual behaviour unscrupulous, morally decadent, against the culture and something unacceptable in a civilised society; have forcefully advocated to uphold the Sec 377 of IPC to the extent of its validation in the context of preserving the moral fabric of society.
A careful reading into the judgement spells out the concern apex court has shown before concluding its verdict. A diligent approach is conspicuous when they carefully excludes the perception that it is not “an individual, particular people or identity irrespective of its sexual orientation”, also “irrespective of age, gender or consent” shall be persecuted but “certain act and circumstances under which such an act is conducted” will be considered as an unnatural offence and shall stand the test of judicial interpretation. These certain acts falls under the ambit derived from the past judgment of the cases brought before the court. Supreme Court was very much in its domain of judicial exercise, where they have cleared that the established law – i.e. law of the land – and the provisions it contains is presumed to be constitutional and this court within all available option try to defend the provision in question; unconstitutionality is something that is tested as a matter of last resort.
A writ petition filed by Naz foundation kick-started this sensitive issue. It was found that their record of protecting these minority section (LGBT) from HIV is short of target and uninspiring. Not only this, they even failed to rightly present and indicate the discriminatory stand taken by the state against this minority section. Their commitment in pursuing this case in full spirit was never questioned and scrutinised. The news dispassionately carried by one of the leading Indian newspaper “The Hindu” highlighted some of the facts which are worth mentioning here: NAZ foundation has not furnished the details regarding the harassment of and assault on sexual minorities by public officials and public authorities. Their work was limited only to the accounting of the data of MSM (Men having sex with only men); also, they have not done enough in protecting the sexual minorities from HIV and bringing out the details of discriminatory attitude of state agencies against them. Only in an affidavit filed on behalf of Ministry of Health and Family Welfare, Department of AIDS Control, it has been asserted that the estimated HIV prevalence among FSW (female sex workers) is 4.60% to 4.94%, among MSM 6.54% to 7.23% and IDU (injecting drug users) 9.42% to 10.30%. The total population of MSM, as in 2006, was estimated to be 25,00,000 and 10% of them are at risk of HIV.”
Indian legislature too has to share the blame for failing to provide the legal protection and safeguard of right of LGBT section as a whole. IPC till date has been amended 30 times, the latest being related to sexual offences but clueless Indian legislature missed out on repealing Sec 377 altogether, let alone passing the law. A legal edifice in the form of law would have been an ideal approach in bringing this minority section to the mainstream; but the absence of such law has resisted their integration into the society in the long term. The hypocrisy does stand exposed where now every party uniformly and unanimously supporting the cause of sexual minorities and intensely mooting to bring a law to address the issue in its entirety. What were they doing till date? An act of judicial restraint has triggered the Indian legislature to bring in an institutional mechanism like National Commission of Women, NCSC/NCST, NCPCR etc that in the long run will entrust justice, their empowerment and assimilation into the society that will help them contribute in the progress and growth of the nation.
If parliament is the constructor of law, then courts are their sentinels. Both have a role to play. In fact, every one of us has a role to play so as to prevent their further marginalisation, victimisation and social ostracism. Homosexuality per se is not stigmatised here but the very act which have some serious consequences on health and life. This is all to prevent the continuing violation of their inalienable rights. Homosexuality is reality, something natural and unforced upon is to stay here, and they are going nowhere. This is a long course to justice which will take time, till then just wait and watch.