Is the Indian Judiciary Helpless?

 

Why the SC’s 377 verdict is actually a boon for the gay community

Jai Anant Dehadrai in the Times of India

Section 377 of the Indian Penal Code that criminalises homosexual behaviour is an archaic and cruel remnant of our colonial past, which ought to have been struck off from the penal-code decades ago. There are no two views about this.

But the question is, struck off by whom? Let us step back and assess the facts.

The Supreme Court’s verdict has left the LGBT community agitated and deeply hurt. Their expectation was that the Court would uphold the Delhi High Court’s verdict, which held Section 377 to be unconstitutional. To their dismay, this unfortunately did not happen.

The community has waged a painfully long battle against the extreme prejudice and cruelty they face in our society. Quite admirably, this fight for respect and equal rights has always been peaceful and dignified – never marred by the mindless violence that accompanies most ‘protests’ in India. No lives were lost. No buses were burnt. No riots were reported. Even post the verdict, the community assembled peacefully at Jantar Mantar, wearing black clothes as a mark of their disappointment.

In the immediate aftermath of the judgment, social activists and civil-rights lawyers have come out in unison criticising the Supreme Court. They are of the view that this verdict has stunted their efforts to bring equal rights for the Gay community. Some have even gone on to say that this decision, in one sweeping stroke, “has taken back the fight 100 years.” Senior lawyers, who shall not be named here, have also openly questioned why the Court “missed a crucial opportunity for reforming a societal prejudice.”

But the underlying message in Justice Singhvi’s 25 page judgment appears to have been lost in the din of voices competing to denounce the verdict. Some have termed it medieval and even immoral. But absolutely no one has challenged its legality. It is absolutely crucial that we uncover this subtle truth that we’re all missing.

For a truly lasting and meaningful change, the gay and lesbian community must realise that their means must justify the righteous end they seek. Had the Supreme Court struck down the offending Section of law and played to the galleries, the victory would merely have been a pyrrhic one. The community would have lost the ethical high-ground in their quest for respect and equality.

Here is why.

Simply put, the judiciary has no business to enter into the realm of law-making or policy formulation. It is only because our elected parliamentarians have been so busy doing everything else apart from their jobs, that the Supreme Court is forced to interfere and protect the common citizen. This sad trend has become so pervasive, that now we’ve come to expect it as the norm. This is absolutely unconstitutional and against everything Ambedkar – the original champion of civil liberties, stood for and fought for. Justice Singhvi’s judgment is a loud wake-up call for the entire country – reminding us that elected representatives sitting in Parliament on tax-payers money are tasked with the responsibility and authority to make or amend laws. Relying on the Supreme Court to decide these legislative and policy matters is akin to us giving a free pass to our politicians who would rather shirk their responsibilities than take hard decisions. 

The Supreme Court via this judgment has correctly shifted the spotlight onto our legislators and their shameful lethargy to evolve our legal systems. IPC 377 must certainly go – but it is the Union Executive which must rise to the occasion and effectuate this change. It is indeed shocking to hear national politicians like Rahul Gandhi  criticise the Court’s order – when it is in fact the job of his government to take the initiative and scrap the law. I am surprised that we’ve blinded ourselves to this obvious political hypocrisy.

We, as Indians ought to be grateful for a judge like Justice Singhvi, who displayed staunch moral courage in the face of contrarian public sentiment to do the right thing. His reasoning does not comment on the merits of the case – which is clear as day that the law ought to be changed by legislators. The judgment of the Delhi High Court completely ignored the doctrine of separation of powers between the organs of government, which frowns upon unnecessary judicial activism by over-eager judges.

Parliament must take into account the genuine grievances of the LGBT community and not only repeal this draconic penal provision but also put into place a policy framework to protect the rights and dignity of this crucial component of our society. 

Like Gandhiji said, ‘the means must justify the ends.’