The government review petition seeking re-examination of the notorious Section 377 of the Indian Penal Code that criminalises homosexuality is a silver lining in the dark cloud that had threatened to overwhelm the equal rights horizon of this country. The penal provision that was reinstated by the Supreme Court on 11 December 2013, in what has decried as one of the most regressive rulings to come out from the apex judicial body in years. In this light, the government review petition is the only straw of hope for the marginalised, and now ‘criminalised’ LGBT people of this country, for whom the Delhi HC order reading down Section 377 and decriminalisation of gay sex had been a watershed moment of finding political voice, visibility and representation. The Supreme Court’s falling back on the archaic 1861 colonial law to justify the ‘moral majoritarian’ point of view was not only against the grain of the modern times, but also against basic human rights, because it considers the rights of a ‘minuscule minority’ as dispensable.This is against the spirit of the Indian Constitution that guarantees fundamental rights of freedom and life choices. How can sex between two consenting adults in private be against the order of nature, when we have developed better understanding of our physiology, physiognomy and social psychology, all of which point towards a continuum of sexual choices and orientation, instead of the bipolar division of sexuality into male and female sexes.
The Centre’s petition explicitly takes on the SC verdict, saying that the judgment ‘suffers from errors apparent on the face of record, and is contrary to well-established principles of law laid down by this court enunciating the width and ambit of fundamental rights under Articles 14, 15 and 21 of the Constitution.’ As eloquently put forward by the author Vikram Seth, it’s not criminal to be a homosexual, but it’s certainly a travesty of justice if Section 377 is not struck down. Then, we don’t become a rainbow nation.