It was a moment of technical triumph. The Supreme Court, so often criticized for activism, and for stepping into the territories of the executive and the legislature, refrained from either when it upheld the constitutionality of Section 377 of the Indian Penal Code. This 1860 section outlaws “carnal intercourse against the order of nature”, and had been declared unconstitutional with respect to sex between consenting adults by the Delhi High Court in 2009. The Supreme Court’s judgment, however, returns homosexuality to the sphere of the illegal. But in remaining strictly within its purview, the court seems to have let a few ironies pass. According to the phraseology of the section, it could be argued that certain kinds of penetration practised by heterosexual couples were illegal too. Would the police be entering ‘respectable’, ‘legal’ conjugal bedrooms then? And if penetration is the key, as the section seems to declare it is, what happens to same-sex partners who practise non-penetrative sex? The British may have abhorred the thought in 1860, but such sex does exist.
The Supreme Court’s rejection of activism is welcome, although puzzling. Not a week has passed since the court decided who can use a red light atop his car and who cannot. Is this, then, an abruptly-turned new leaf, by virtue of which the court has decided to stick to technicalities only, declaring that it is up to Parliament to amend the law if it feels that is necessary? This time perhaps, the people’s government needs to step out on a limb and take Section 377 by its troublesome horns. Since the law criminalizes not just homosexual people, but anal and oral sex as well, while throwing, in insanely prudish confusion, paedophilia and bestiality into the mix, it cries out for change. No democratic republic claiming non-discriminatory equality can allow the perpetuation of such shamefully oppressive and hypocritical values. Besides, unless sexual freedoms are disentangled from crimes, those such as paedophilia, sex trafficking, sexual abuse of children in the home and outside and using them in different ways for the sex industry cannot be identified and tackled. This is a cause the government can promote even in the short time it has left, if only to isolate the political forces that oppose freedoms in the name of ‘religion’ and ‘Indian culture’.