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  • Writer's pictureMeena Kandasamy

(Asian Age) Judiciary and Institutionalized Homophobia

In upholding the constitutionality of Section 377 of the Indian Penal Code, the Supreme Court of India has not only taken our society backwards in time, but has also put its conservative and patriarchal mores into a basic misreading of the Indian Constitution itself. Even as we decry such a judgment that denies full citizenship to homosexuals, we should not fail to note that the Indian judicial system has been consistently marked for its regressive nature and its refusal to move in tune with the times.

When Para 52 of that judgment contains the phrase, “the so-called rights of LGBT persons”, the citizens of this India, irrespective of their sexual preferences, do not have to recognise or respect the so-called Supreme Court of India.

Apart from criminalizing consensual homosexual sexual acts, quoting 13th century English texts that sodomites should be burnt alive, a thread of religious morality permeates yesterday’s SC judgment. The appellants—fundamentalists from Hindu, Christian and Muslim backgrounds—extended arguments that homosexual intercourse will lead to unmanliness and lead to person not being useful in society and so on.

In an ideal, egalitarian world, the Supreme Court would not have entertained such hateful and paranoid arguments of demented homophobes, and, as an act of goodwill towards the human race, referred these religious hate-mongers to counselling. Instead, the Court was busy with saying “without any hesitation of contradiction that the orifice of mouth is not, according to nature, meant for sexual or carnal intercourse.” It is shame on the judiciary to decide what are the human orifices meant for sexual or carnal intercourse “according to nature.” If humanity lived strictly according to what nature intended, we would have no modern medicine, no educational system, and no Supreme Court of India. I’m not getting personal, but even the courthouse of a subdivisional magistrate would not exist in such a pure, natural state.

The Bench has also come up with a finding that LGBT people constitute a “minuscule fraction of the country’s population.” Allowing majoritarianism and populism to be the basis for law formation will only entail in a dangerous situation where the minorities lose all rights. And the question, how do we know the real numbers when people cannot even come out of the closet for fear of being criminalized by the same judicial system?

If the Constitution is the touchstone for the laws of the land, than a colonial era law like Sec 377 should cease to exist because it runs against the right to equality, and the right to not be discriminated on the grounds of sex. It is the spirit of the Constitution that the legal system should respect, and the Constitution clearly calls for equality and it protects Indian citizens from discrimination.

At this point in time, even as marital rape continues to be decriminalized, this country does not require the Honourable Courts to decide what is Honourable sex.

As regards yesterday’s judgment, we will rather be in jail for holding this feudalistic Supreme Court in contempt, instead of being complicit with institutionalised homophobia.

It is now in the hands of the Left, the LGBT groups and the young people to carry forward an escalating campaign of information and protest to defend the rights of sexual minorities. Let this reactionary judgment be our invitation to action.

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