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Millennium Post

This is just sexual apartheid, isn’t it?

The Supreme Court verdict on 11 December 2013 overruling the 2009 Delhi High Court ruling of 2 July 2009 that had read down Section 377 of Indian Penal Code, effectively ‘decriminalising’ homosexuality is a heart-wrenching development. Not only does it reinstate the ban on gay sexuality, as had been the case before 2009, it betrays the sentiment of a community that had been growing and becoming increasingly self-confident in the past few years. Wednesday’s ruling comes as an immense setback to not just the members of the lesbian, gay, bisexual and transgender (LGBT) community, but it also renders ‘unnatural’ the multifarious and commonplace sexual practices that are not procreative. This is an extremely regressive step that the apex court has taken, much to the surprise of an entire nation that was feeling, until a day back, a resplendent spring in its step, thanks to the electoral victories of the non-Congress parties in the state assembly polls. There was a feeling that the years of pleading for justice on grounds of sexual equality, were finally about to bear fruit, reaching its logical conclusion in the Supreme Court upholding the Delhi HC order. However, it seems that the apex court preferred to backtrack on this rather delicate matter that pertained to the constitutional illegality of certain sexual minorities as well as their ability to freely express their desires. The Section 377 of IPC, essentially pronounces as an ‘unnatural offence’ any non-heteronormative expressions of desire, including homosexuality, and therefore is an assault on the right to identity, and freedom of expression, fundamental rights guaranteed by Article 21 of the Indian constitution.

That LGBT activists, who have been left crestfallen by this ruling, dished out by Justice GS Singhvi on his last day at the Supreme Court, have been obviously betrayed. But more than that this is a betrayal of India’s basic secular makeup that is sanctioned by the constitution. How can a country which prefers to brand itself as a modern, liberal, global superpower retrace its steps so far back into the dark alleys of a nebulous, apolitical, ahistorical past that is cleansed of all vestiges of lived history and cultural memory? How can somebody be branded a criminal because of his/her sexual orientation? Under Section 377 of IPC, homosexuality is punishable by law and can attract a minimum of 10 year in prison. This ruling put India in the same category as certain Middle Eastern nations which we so summarily dismiss as regressive and still caught in a medieval mindset. Other than Putin’s Russia and the Bible belt of America, most of the Western world, that we swear our allegiance to at the drop of a hat, have condemned this ruling. Gay rights are not just about LGBT people themselves; they are about a nation respecting everyone as equal under eyes of law. Sadly, the SC begs to disagree.
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