Landmark SC order: Gay sex not a crime

In a truly historic verdict, the Supreme Court has ruled that consensual gay sex is no longer a criminal offence in India. A tyrannical colonial-era law on the statute book for 157 years, including in independent India for 71 years, refused to acknowledge that differences exist in sexual orientation. The right of consenting adults of the same sex to intercourse was a criminal offence. The striking down of parts of Section 377, in a unanimous verdict, is a truly liberating moment for those with a sexual orientation that may be different from the one between male and female in more traditional sex, which subsumed the reproductive process. The Chief Justice’s words — “I am what I am. So take me as I am” — rang clear and true on what was a red-letter day for a large section of people with different sexual orientation as well as those of indeterminate sex among the LGBTQI community and who have been discriminated against for just that reason.

Constitutional morality must not be interpreted literally, the judges said. The old law punished “carnal intercourse against the order of nature with any man, woman or animal”. Ostracised sections of society can now live without fear. It’s a matter of individual identity, and violence and even stigma against those who don’t conform to the majority’s mores, and are considered “straight”, is a violation of human rights.

India can consider itself a modern society now even if it takes more time for the ruling to sink in and all sections of society begin to accept in a wholesome way that sexual preferences differ from individual to individual. Same-sex relationships had been badly affected by rigid and systematic discrimination with gays also subjected to police harassment. Given the liberty to be open about their sexual preferences and orientation, such people can also freely seek medical help, if indeed such help is needed.

“Sexual orientation is natural and people have no control over it,” a part of the judgment read. This has been so historically, as made out from epics and ancient texts. To have regressed then into accepting a British law and perpetuating discrimination in the land of the Kama Sutra was unnecessary. Further, a landmark order decriminalising gay sex was passed by the Delhi high court in 2009, later overturned in the Supreme Court in 2013. The changing times have at last been recognised by the highest court too. The judges cannot change history, but they have given a future for those with a sexual orientation that does not fall under the male-female category. It is also logical that any kind of sexual activity with animals remains a penal offence under the same section. In this defining moment, what becomes clear is that the State, which has no business in bedrooms of citizens, cannot rule over private lives.