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LGBT rights: India’s tryst with destiny?

Dec 12, 2013

The Supreme Court judgement upholding Section 377 of the Indian Penal Code, a relic of British colonial law, invalidates the lives of multitudes, writes Shaleen Rakesh.

Shaleen Rakesh

New Delhi: As a gay rights activist and as a gay man, I am perplexed and shamed by the decision of the Supreme Court to overturn the historic Delhi High Court judgement of 2009, which decriminalised homosexuality in India. This is an error of enormous proportions. This ruling could have been a certain step in fulfilling India’s destiny as a protector of human rights, but insteadthe country has deeply failed its citizens.

The judgement that set aside that historic and progressive judgement is flimsy, misinformed and a severe blow to the Indian people's fundamental rights to equality and freedom from discrimination, violence, and harassment. It is indeed a huge step backwards not just for the LGBT movement in this country, but also for human rights everywhere.

The Supreme Court judgement upholding Section 377 of the Indian Penal Code, a relic of British colonial law, invalidates the lives of multitudes. This judgement ignores the spirit of equality, justice and freedom that is at the heart of the Indian Constitution, the vision ofthe founders forour large and diverse democracy.

It has, in effect, compromised the principle of constitutional morality, the notion that subjective moralities or majority views cannot be allowed to marginalise and exclude minority communities. In a country and a judicial system which has a positive history of affirming human rights, this ruling marks an exceptionally low point.

Shocking as this decision is, the joint efforts and activism for all people's basic human rights will indeed continue and may even have found a fillip. The winds of change are blowing, both in India and on the larger global stage. Fundamental human rights are not conferred by any court, as the Delhi High Court stated in its judgement in 2009; they are merely confirmed by them. The movement for LGBT rights and equality has not fulfilled its destiny. Despite this shameful judgement, the fight for securing the rights of LGBT people in India and around the world will move forward.

Shaleen Rakesh, is Director: Technical Support, India HIV/AIDS Alliance. Shaleen was instrumental in filing the PIL in Delhi High Court on behalf of Naz Foundation India.

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