New Delhi: On 11 December, 2013 a two judge bench of the Supreme Court of India (SC) ruled that section 377 of the Indian Penal Code (IPC), which considers the practise of homosexuality a criminal offence, does not ‘suffer from the vice of unconstitutionality’ and hence, legally valid. By this highly regrettable ruling the apex court astounded and disappointed not only the LGBT community but the wider public at large.
Jamia Teachers Solidarity Association (JTSA) had deeply desired and hoped that the highest judicial body of the country would uphold the judgment of 2009, a landmark one whereby homosexuality was decriminalised, of the division bench of the Delhi High Court. Instead, the apex court overturned that by declaring the earlier judgement ‘legally unsustainable’. The SC judgment, based as it is on a narrow interpretation of the Constitution and law, therefore suffers from numerous flaws.
Among others, the unfortunate ruling limits the scope of judicial activism. The judges, much to their convenience, decided that it had to be this particular ruling that would demonstrate how separation of powers ought to work in a democracy. Thus, the responsibility of deleting or amending section 377 IPC is transferred to the ‘competent legislature’. After all, important decisions in (im)perfect democracies like India are certainly the prerogative of the people, the vocal majority.
Linked to this passing the buck approach is that the judgement fails to recognize that minorities, sexual or otherwise, require dignified protection by law. This is most disturbing and damaging as it questions the very fundamental, human right of small groups of people to exist and live with dignity in society. Committed to speak and act for the protection of human and civil rights, JTSA registers a strong note of dissent on this anti-people – anti-minority – judgement. It stands in solidarity with the LGBT community and extends full support to the campaign for the right to sexual choice, justice, honour and freedom.
Issued by JTSA on 13 December 13
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