On January 28, 2014, India’s Supreme Court declined to review its terrible decision to re-legitimize India’s colonial era laws against “unnatural sex”. I am disgusted by the judges’ decision to use “judicial restraint” to mask their prejudice. I wholeheartedly endorse this message from the Indian Institutes of Technology against the ruling. The IITs I attended in the 90s were misogynistic environments, with the student bodies being >90% men, with the women present being subjected to either constant attention or unbelievably nasty talk (mostly behind their backs). We received absolutely no guidance on how to treat women well. There was no dating culture, and given that I knew very little about homosexuality or queerness then, I shudder to contemplate what anyone not conforming to 100% heteronormativity went through. This blog post from 2012 appears to signal that not much has changed. The large number of people (including me) who felt deeply uncomfortable in this environment were mostly silenced. I remember speaking against the entrenched misogyny occasionally, but I also remember being silent often. I am glad that so many people associated with IITs all over India signed on to this statement condemning the Supreme Court. Do read their statement in full at the link below.
Where the Delhi High Court’s ruling was a bold effort to give life to the promise of Indian Constitutionalism, the Supreme Court’s decision to reverse it is a deceptive attempt to use judicial restraint as a cover for its refusal to critically interrogate the social effects of legal provisions. Ignoring the lived experiences of LGBTQ people in India altogether, it argues that Section 377 merely penalizes certain acts and does not stigmatize a class of Indian society based on sexuality and gender identity. By failing to recognize the fact that the law exposes LGBTQ people to illegal extortion, harassment and persecution, and by suggesting that the rights of LGBTQ individuals are less worthy of protection because of their “miniscule proportion”, the Supreme Court has failed to perform its constitutional responsibility and betrayed the trust of the Indian people.