In December, 2013, the Supreme Court of India gave its landmark judgment wherein it upheld the Constitutional validity of section 377 of the IPC.
The section has remained as it was laid down by Lord Macaulay, in the original draft of the Indian Penal Code. The Delhi High Court, in the same case had struck down the section stating that it was violative of the privacy of the individuals, who establish homosexual relations out of consent.
The judgement was appealed in the SC in the case of Suresh Kumar Koushal & Another vs Naz Foundation and Others. The Supreme Court also dismissed the review petition against the order, and now the curative petitions lie before the judges to take notice of.
A bench of Justices AM Kahnwilkar, DY Chandrachud and CJI Dipak Misra suggested that the judgment above needs to be reconsidered by taking all the aspects in a cumulative manner.
There has been a very deep social debate not only in India but across the globe over legalising the association between people of the same sex. The religious scriptures that command authority over men have announced that the sexual energies are to be used only for the procreation of children, while the society has of late began to recognize the prevalence of homosexuality.
Homosexuality has been studied in psychology where there are proofs of the fact that it is a psychological disorder, while the transgenders and bisexuals are left unexplained, in the lurch of perversion.
Thoughts, are the implants of desire that bears result in time. The emotional aspect of lives is one that nobody but a man himself may control. The choice of individuals to live the way they want describes a lot of aspects about their lives.
The people now a days have developed certain acceptance towards those who don’t do things in the dark. They do it openly and with consent. At least they remain better placed than those who rape women or force males into homosexual activities.
The legal sphere accords granting of liberties to men and women to live as they want, while the society uses its weight to avoid any frictions between the accepted norms.
Indian society is known to have been conservative. While the Court is faced with a narrow view of the society which represents the LGBT community, the majority of people who live straight lives, need to come out strong to use their weight to transgress upon individual freedom.
There has been a wide scale of support to people who have come out openly as LGBT, and the recent facebook demonstrations for support have assumed significance.
Thus the overall picture will be very thorny, as the SC treads along the road less taken to find the majority at one end and a minority at the other.
As the law is used as a means to social end, there will have to be a lot of ground work and opinion moulding before an abrupt order is enforced. The possibility of rioteering and ruckus, honour killings and suicides may be followed as has been seen in the case of Special Marriages.
The law will have to move cautiously.