Chanakya Sethi analyzes India’s shameful court decision re-criminalizing homosexuality:
The majority passes a law that the minority believes discriminates against it. The minority goes to court seeking relief from the majority. But because the minority group constitutes a “minuscule fraction of the country’s population,” the court will defer to the will of the legislature—that is, to the will of the majority. That, in short, is how the court wrapped itself in the flag of judicial restraint and overturned a lower court decision that had struck down the country’s sodomy laws as unconstitutional.
Kaushal v. Naz Foundation was supposed to be India’s Lawrence v. Texas, the U.S. Supreme Court’s path-breaking decision striking down state anti-sodomy laws. Instead Kaushal is already being described in the Indian press as the country’s Dred Scott or Plessy v. Ferguson: “moments of deep national shame, blots on the judicial record, examples par excellence of judges at their very worst,” as one op-ed put it.
Shivam Viz provides more details on the basis of the decision:
In the end, the court’s decision rested heavily on two dubious assertions. The first was that homosexuals in India were too small in number to constitute a “class,” and could therefore not be subject to discrimination. “What is a bisexual?” Justice Mukhopadhyay wondered aloud during one hearing; when he was given an answer, he stated with confidence that they too were not a “class.” Though it was shown that Section 377 has been used mainly to prosecute gay men, the court’s judgment maintained that the prohibition against “unnatural” sex could apply even to marital relations, and was therefore non-discriminatory.
The second main element of the court’s decision—which refers, not incidentally, to “the so-called rights of LGBT persons”—was an assertion of judicial restraint. The proper venue to debate this law, Justice Singhvi said during one hearing, is the Indian Parliament. There was not a little irony to these declamations, because the Indian Supreme Court is renowned for its judicial activism: in recent years, it has forcefully intervened in a great many legislative matters, and Justice Singhvi himself has been a vocal defender of such activism.
The final judgment makes it clear that the issue was not restraint per se, but the judges’ belief that the criminalization of homosexuality did not cause sufficient harm to justify any action from the court. The Parliament should feel free to strike the law down, they suggested, but the Supreme Court need not do so.
Nitin Rao discusses India’s view of individual rights :
We need to understand that India has always valued groups and “society” over the individual. For example, if somebody is playing music very loudly in a bus, it would likely be seen as an aggressive action to request that they wear earphones. In a country where 90 percent of marriages are arranged marriages, romantic relations are seen as a decision made by families, rather than individuals.
The horrific 2012 gang rape of a 23-year-old intern in Delhi highlighted how the concept of individual rights still has a long road ahead to acceptance. After the horrific public sexual assault, a national discussion erupted in the media in which womens’ groups had to explain that the victim is not to blame. Sadly, India’s great balkanization by religion and caste has created an environment where group rights take precedence over individual ones.
Likewise, LGBT rights are not seen as individual rights in India. Once again, the country is sadly choosing to treat life and liberty, not as being unalienable rights, but instead as matters to be judged based on clout, numbers, and “contribution to the community.”
(Photo: On December 11th, 2013, the LGBT community of New Delhi, India protests against the Supreme Court order making gay sex a punishable offense. By M Zhazo/India Today Group/Getty Images)
The Dish 