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Four years of optimism were cut short by the Supreme Court’s judgment on Wednesday upholding Section 377 of the Indian Penal Code. Meant to crack down on “carnal intercourse against the order of nature”, it has long been used to threaten and humiliate homosexual adults in consensual relationships. In its judgment, the court stated that there was no constitutional infirmity in the section, that it was not within its remit to change the law—that was the Parliament’s business.
Introduced in the statute books in 1860, the law smacks of the best of Victorian repression. In its attempt to codify what is “natural” and in its implicit bias against relationships that fall outside the conventional heterosexual template, it makes no distinction between paedophilia, rape, bestiality and all forms of love and desire between two consenting adults of the same sex. In 2009, the Delhi High Court had read down Section 377, citing constitutional morality. Discriminating against people on the basis of their sexual orientation went against the principles of equality and inclusion that are enshrined in the Constitution. The four years since then have seen a slowly growing openness about same sex relationships. By rejecting the idea that the terms of Section 377 violated constitutional principles, the Supreme Court has set the discourse back by decades.
The court has couched its judgment in terms of judicial decorum and a regard for the separation of powers. Yet the same court has pronounced on matters of policy and day-to-day administration. The Supreme Court is well within its remit to secure the fundamental rights of the people, to protect the individual from encroachment by the state and from prejudice. By not doing so in this case, it has failed in its primary duty.