Acceptance after verdict

The surprising thing about the Supreme Court judgment decriminalising homosexuality was not the judgment itself, whose tone and tenor were expected given the arguments made before and the pronouncements made by the learned judges in the weeks leading up to the verdict.

It was the lack of any large-scale negative reaction to a judgment that took forward the cause of individual rights by encompassing sexual minorities. In its wording, the judgment was diametrically different from the Supreme Court ruling of 2013 that had struck down an earlier Delhi High Court order on decriminalising homosexuality by relying, argumentatively, on the low number of sexual minorities.

In this respect, the latest judgment is in line with last year’s ruling on triple talaq, which too was met with little resistance. Part of the reason for that was the government’s determined push against the measure, including bringing a Bill in Parliament to annul the practice. The government, for its own reasons, chose to show little alacrity in the matter of Section 377.

A number of things are immediately apparent from the judgment, which will of course have several long-term implications on redefining the status of the LGBT community, including conjugal and adoption rights. The first is the almost anti-climactic nature of the striking down of a law that has hobbled sexual minorities for long. 

The reception to the judgment bolsters the impression that it was long overdue, not merely because the 2013 judgment had been criticised so abundantly in the media and by civil society but also due to the recognition that individual rights pertaining to sexuality should not — as may be appropriate in other cases — obtain from the will of the people or, in other words, be subject to the discretion of the executive.

That, in sum, was the argument forwarded by the bench in 2013, lobbing the matter into the court of public opinion by expecting Parliament to take up the matter. In overturning that argument, the latest ruling carries forward a nationwide debate on the nature of individual rights and how they clash with majority opinion. In both triple talaq and Section 377, the Supreme Court took recourse to the question of human dignity, in that human life can flourish only when it is free to define the contours of its most intimate needs, including love and marriage.

Civil society will have a tougher time convincing people of the importance of granting rights to sexual minorities, since it is not clear that a homosexual lifestyle can work in Indian context

Even so, the triple talaq case is somewhat different from Section 377. While the provision of triple talaq and the hitherto legal Section 377 have often been misused, it is far easier to argue for revoking the former than the latter. Triple talaq emerges from an abuse of the institution of marriage, which all societies recognise and esteem.

Section 377 deals with an altogether different beast. Civil society will have a tougher time convincing people of the importance of granting rights to sexual minorities, since it is not clear that a homosexual lifestyle can work in the Indian context. By this I do not just mean society’s willingness to accord dignity to homosexual couples but point to the larger question of the nature of homosexuality itself.

Homosexuality redefines every social code — from marriage to progeny — and for society to come around to greater acceptance, it will require deliberation and empathy. While the arts can play some role in sensitising societies towards other lives, every society must ultimately traverse its own journey to accommodate and perhaps even welcome those who depart from the norm.

What the judgment does is that it signals the direction of the debate. When the highest court of the land sends out a message as clear as this, people sit up and listen. Arguments, from the “inherent” nature of homosexuality to the struggles of coming to terms with it, are meant to guide a doubting public to see reason. On its part, the LGBT community must understand that questions about its status are natural and do not necessarily stem from bigotry.

Will India get there? It is likely to, given our historical live-and-let-live moorings. Will it be easy? Probably not, though it is likely to be smoother than expected, as happens with most such battles once the first wall — in this case 377 — has been torn down. The process will be hastened by sane expectations from both sides.

Recent jurisprudence has been a boon for the subject of individual rights in India. The real victory though will come from a continuous campaign to engage with those whom the court may have bypassed in its learned push towards egalitarianism.
 

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