


“Who is the expert to explain the order of nature?,” asked India’s Supreme Court during a hearing on overturning the landmark 2009 High Court decision to declare Section 377 of the Indian Penal Code unconstitutional.
Section 377 is a 148-year old Colonial era law which made homosexual intercourse a criminal offense. 148 years ago the British decided that same-sex intercourse was an “unnatural offense.” Today, 65 years after the British Raj was kicked out of India, the moral brigade among Hindus, Muslims and Christians in India are united in fighting to keep their law in place. This is the same moral brigade that every year incites riots and killings in their relentless quest to prove moral superiority over each other’s religions.
It’s time for this moral brigade to use this unity to fight injustices that are really and truly against the order of nature. Injustices like thousands of young girls being trafficked into prostitution and child marriages like cheap commodities. Heinous injustices like millions of female fetuses being aborted because they are an unwanted burden. Young men and women brutally murdered in ‘honor killings’ because their love is considered against the ‘order of nature.’ And millions of Dalits who are dehumanized and degraded everyday because they are considered to be less than human.
As for criminalizing gay sex under Section 377, Chief Justice Ajit Prakash Shah and Justice S Muralidhar got it absolutely right in their ruling:
If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of ‘inclusiveness’. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as “deviants’ or ‘different’ are not on that score excluded or ostracised.
Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination. This was the ‘spirit behind the Resolution’ of which Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.
Tags: India Supreme Court, Section 377 Indian Penal code




