When an alien tradition becomes native!
The LGBT rights have always been of enormous interest to me. It has gained momentum in India since 2009. It was on 2nd July, 2009, the Delhi High Court decriminalized homosexuality. From that time, homosexuality has been in news more or less. This judgment raised a lot of hopes.
‘We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By 'adult' we mean everyone who is 18 years of age and above’ (Delhi High Court, 2009, p.g. 105).
It was quite revolutionary. It was a progressive judgment towards the colonial baggage. Well, section 377 is a product of the British colonial governors. According to The International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), 75 countries around the world criminalize homosexual behaviors among adults. The reason for more than half of these countries to have this law stemmed from the root of colonisation. Wherever the British went, this law followed. What happened to India? India is a democratic country which highlights on ‘by the people’, ‘of the people’ and ‘for the people’.
On 12 December 2013, the Supreme Court of India overturned the landmark judgement of Delhi High court holding that amending or repealing Section 377 should be a matter left to Parliament, not the judiciary. How convenient to throw the ball in the court of the government! Who has the power: the Indian government or the Supreme court?
One of the interesting statements made in the judgement was that only that a minuscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offense under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.
India celebrated the 69th Independence day on 15th August. Many years have passed since Independence. In the post colonial era, the project of social liberation had gained a lot of popularity. It is very intriguing to see how a colonial law, an alien law, becomes attached to the nation’s pride.