“I ask no favour for my sex, all I ask of our brethren is that they take their feet off our necks.”
Ruth Bader Gingsburg, iconic American lawyer and current Associate Justice of the Supreme Court of the United States, uttered these smashing words during her legendary drive in the early 1970’s for women equality and justice. A firm practitioner of judicial remediation, she believed that protests and demonstrations are important, but the notion of bringing about a cultural change would fall on its feet if the law never changed.
In India too, a significant change is underway. Ever since the Naz Foundation raised the issue of Section 377 in the Delhi High Court, in 2001, seeking progressive legislation on homosexual intercourse between consenting adults, there has been a rally of support in favour of the legislation, something that at times was uplifted by the courts. In 2009 the Delhi High Court decriminalised sex between consenting adults of the same gender by holding the penal provision as “illegal” in its rightful nature. However it later saw its judgment overturned in 2013 by the apex court, amidst a surge in right wing populism and ideologies as it wholeheartedly dismissed the review plea against which the curative petitions were filed.
What happened last year in the month of November raised serious questions around the fidelity of the system at a national level. A bench headed by Justice J. Chelameshwar investigated alleged corruption among higher members of the judiciary. It dampened a long held spirit of trust in the judiciary which the citizens of India profoundly wore on their shoulders. This happened months after the country seemingly saw a stream of constitutional victories, one which most importantly declared privacy as a fundamental right and found questioning what two people do in the realms of their own house a serious violation of that.
Now that the judiciary has seemingly scrapped Section 377, what we need to pay close attention to is the literature and the context it set before proceeding with the judgement. Its usage of words and phrases like, “Look for a rainbow in every cloud” and “No one can escape from their individualism, society is now better for individualism” are signs that we can now hope for a reformed judicial attitude which perhaps doesn’t look at berating the transcending phase that our nation collectively has been riding for a while. The decision is a strong statement that will resonate within the ecosystem of religious fundamentalists who misinterpret sexuality, and believe that majoritarian thinking can be imposed here.
Hopefully this act is not another throw of the dice by the government, which was carefully orchestrated towards galloping votes from the liberal counterparts, which, in the end, doesn’t manifest into implementation when the system is again faced with issues that disrespect the law completely.
When 2013 saw a rise in conservative nationalism, Section 377 was upheld. But now that the government of India has come under severe scrutiny for its activities practiced in the name of nationalism, it is perhaps again looking at capturing the nation’s attention and the growing informed population by doing something historic.
All we can now hope for is perhaps that this decision becomes a stepping stone that encourages progressive policy making and development. A lot of deadwood colonial-era laws need to go, and when years later they are abolished we may very well look back to this date in history and ponder on how it inspired everything.