On Wednesday, a two-judge bench of the Supreme Court of India set aside the Delhi High Court judgment on Section 377 of the Indian Penal Code. The high court judgment had "read down" the section, in effect decriminalising homosexuality. The Supreme Court, however, disagreed with the high court, and reportedly ruled that there was "no constitutional infirmity" in Section 377. As such, the Supreme Court was reported to have said, the appropriate venue for a decision on Article 377, violation of which attracts penalties up to life imprisonment, is Parliament. The high court verdict had been challenged not by the government, which had lost that case, but by a set of organisations and individuals including Hindu, Muslim and Christian religious organisations. The Government of India, which had originally been divided on the subject, eventually told the Supreme Court that it had no objection to the high court verdict, which had held that Section 377 was violative of various fundamental rights.
That the Supreme Court has chosen to defer to the power of Parliament in this case is worth noting. However, there has been widespread disappointment in what is being seen as a regressive step. It is certainly true that, whatever the legal merits of the case at hand, India in 2013 as a liberal country with a liberal Constitution should be able to provide basic sexual rights to all its citizens. Section 377, a remnant of Victorian morality whose original British equivalent has long been struck down, does not fit in with the direction that India wishes to go as a society. If the ball has now been lobbed to Parliament's court, it is necessary to take a speedy decision to move forward with changing that provision. Reform of the Indian Penal Code - a fairly comprehensive attempt at which has already been tried lately - should not take up too much of Parliament's valuable time.
It is necessary to do this not just for ethical but also for practical reasons. There are many reports of how Section 377 has been the basis for the harassment of gay and transgendered individuals by officials of the state. But the sight, in this day and age, of a liberal democracy actually re-criminalising homosexuality will rebound extremely negatively on India's reputation. It is important to note that a large proportion of the favourable attitude to India worldwide - a crucial support that helps keep the India story going even in this time of economic slowdown - is that it has the accoutrements of liberalism and pluralism. It is impossible to overemphasise the effect of such soft power, especially when other reform is thin on the ground. In any case, just like women's safety is not only an ethical and law-and-order issue but something necessary to ensure sustained economic growth, reducing the power of the police to harass ordinary citizens should be seen as not just a moral but an economic imperative. It is welcome that members of the Left parties, the Janata Dal (United), and the Congress have already expressed their disagreement with the restoration of the original reading of Section 377. The minister of state for home, R P N Singh, has said he personally opposes the section; Law Minister Kapil Sibal has said Parliament will discuss it "if it [Parliament] runs". These promises should be followed up.
