Fittingly for a progressive and liberal society, Indians are asking whether those in the LGBT community should be treated as criminals and if Section 377 of the Indian Penal Code that criminalises same sex relations is relevant any more. The three-member Supreme Court bench headed by Chief Justice of India Dipak Misra has done just that. In effect, the top court has indicated that it is open to revisiting its own order of December 2013 that criminalised same sex relations even in private between two consenting adults. The world over, notwithstanding what conservative religious hawks have professed, encouraging changes have taken place and people who are different have been embraced with open arms. There is no denying the fact that the judiciary, executive and the legislature have to be open to changes if required.
At the start, there is a need to be open-minded rather than pre-determined about what is against the “order of nature.” The three judge bench of the Supreme Court have opposed the use of terms like “carnal intercourse” to describe same sex relations in the December 2013 order. There’s no reason to believe that lesbian, gay, bisexual, transgender or queer relationships would always be violent or criminal in nature. Allowing LGBTs their space, sensitisation over their place in society should be done gradually. While this happens, a national consensus on the issue needs to be evolved.
For this, everyone needs to come on board. That would include the Catholic Church and others who have been opposed to LGBTs. The latest observations by the judges of the Supreme Court would surely have enthused India’s LGBT community. On a parallel line, a threadbare debate on LGBT rights will have to happen in both Parliament and state legislatures given the long-term implications of the issue.
Fourteen countries of the European Union, including Germany, France, Spain and the United Kingdom, not only recognise the basic rights of LGBT population but also allow same sex marriages. However, a larger number of countries like Italy, Switzerland and Greece have taken a diametrically opposite view. In countries like Russia, Turkey and Eastern European countries that had been part of the Warsaw Pact countries, members of the LGBT community are shunned and relegated to the margins of society. In countries across Africa, religious orientation, the spread of HIV amongst youngsters, trafficking of young boys and girls apart from peddling of drugs is attributed to same sex relationships. Leave alone same sex marriages, even basic rights have been denied in several countries across the African continent.
According to a Pew Research Centre fact sheet, about 26 countries, among them the US, have not only allowed same sex marriages but also provided legal sanctity to these relationships. Evidently, this is no easy task. Pope Francis, no less, has been criticised by conservatives for having asked pastors to be more tolerant of lesbians, gay and divorced people. Of course, he has not in any way overturned the position of the Catholic Church on homosexuality — but he has signalled that Christian religious institutions would have to be more flexible on the issue. Even among the dharmacharyas and Vishwa Hindu Parishad back home, some re-thinking and flexibility on LGBTs and same sex relationships have been aired. The Muslim clergy have rejected same sex relations, even though educated and progressive Muslims seem to be open.
Given that world over more and more governments are open to a debate on LGBTs, gay partnerships and marriages, India would do well to decriminalising the relationships.