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Saturday, December 04, 2021

It’s about all of us

There come moments in the life of a nation when it has to confront its deepest prejudices and fears in the mirror of its constitutional morality.

Written by Pratap Bhanu Mehta |
July 3, 2009 2:53:39 am

There come moments in the life of a nation when it has to confront its deepest prejudices and fears in the mirror of its constitutional morality. The Delhi high court’s judgment in Naz Foundation vs Union of India,decriminalising private,adult,consensual homosexual acts,does just that. The judgment is a powerful example of judicial craftsmanship. It is,unusually amongst recent judgments that are constitutionally significant,clear and precise. It embodies the right combination of technical rigour in thinking about the law,with a persuasive vision of the deepest values those laws embody.

There will be an appropriate time for a detailed legal analysis of the judgment. Many will,doubtless,latch on to the judgment as offending something called our tradition or our values. But to interpret it this way would be a mistake. What the court says is this. Under our constitutional scheme,no person ought to be targeted or discriminated against for simply being who they are. If we give up this value,we give up everything all of us cherish: both our liberty and our right to be treated equally. This judgment is defending our values. Simply put,the judgment says that the state has no presumptive right to regulate private acts between consenting adults. It protects privacy. That is our value. The judgment says that individuals should not feel so stigmatised that they are unable to seek medical help. That is our value.

The judgment is first and foremost a defence of liberty,equality,privacy and a presumptive check on state power. It is a feature of these values that they are secure only when they are enjoyed by all. Privacy cannot be genuinely protected if the state is given arbitrary power over some groups; equality cannot be realised if invidious distinctions between citizens persist; rights of liberty cannot be genuine if they apply only to all those who are alike. The essence of toleration is that each one of us can be safe from the fear of stigma,discrimination,persecution,only when all of us are safe; otherwise what we get is a counterfeit toleration. So let it be clear: this judgment is not about a minority,not about valorising a lifestyle,it is about the values that made us who we are as a nation. Neither the detractors of this judgment,nor its defenders for that matter,should forget the fact that it is in the name of a genuine common morality that this decision can be defended.

We should not minimise the fact that social change in matters as delicate as sexuality is difficult to negotiate in any society. The judgment is admirably tactful in pointing out simply one fact: the state has not been able to prove that it can demonstrate that serious harms result as a consequence of these privat acts. Claims of such harm are often causally unfounded,based on prejudice and often even less plausible than harms that result from many of the practices we do tolerate. At least on this much there is a consensus amongst the 126 nations who have decriminalised this practice before India. Even for those,otherwise uncomfortable,at least this much should be enough to ground the basic legal claim the court has made. There ought to be at least overlapping consensus on this point.

The discourse on toleration this has generated is revealing. There is the usual assortment of religious leaders who are appealing to their traditions. One thing should be clear: a claim can have no standing simply because it is made on the grounds of religion or,as in the case of the VHP,tradition. Without saying so,the court has made this abundantly clear. And it will be interesting if this secular logic is now followed through in all cases pertaining to equality and liberty. The court has fore-grounded personal autonomy as a constitutional value,and potentially set the stage for questioning community practices that impede this value.

The second strand of discomfort with the case is more interesting and could potentially be a resource in sustaining the social legitimacy of the judgment. This strand is not so much intolerant,but is simply uncomfortable at having to take a position on the issue. Its mode of tolerance is a kind of benign neglect,“Don’t ask,don’t tell.” This may not be a perfect normative position. Nor may it be an option in modern society. What they are resenting is not so much the decriminalisation,as much as the need to discuss and take a stand. They do not want to discriminate or stigmatise; what they would like is,to use an old-fashioned phrase,a certain modesty in sexual matters of any kind. This anxiety is in a more general sense inescapable. Our society will have to find intelligent ways of dealing with it. But it would be a mistake to necessarily brand this anxiety as a form of intolerance. In its own ways,this discourse of modesty might sustain the kind of tolerance that simply says,“Let it be.”

But now that the court has given a judgment,this very same diffident group would rather not have another polarising debate. Politicians rushing to overturn this judgment might as well take into account the fact that some seeming discomfort may not reflect genuine sentiment against decriminalisation. If you want a “traditional” argument you could say this. In India,tolerance,when it worked,was a product of a kind of benign neglect: to each its own. It is a colonial law that,by bringing the state in,went against the possibility. The court certainly has a vision of an equal and inclusive society,and it may be too far-fetched to say that all of us are ready for it. But at the very least,by getting the state out of private consensual adult relations,the court allows for this more modest,but not insignificant,kind of toleration to take place.

There will be other interesting technical implications of the arguments the court has used. Some will see in the court’s emphasis on non-discrimination grounds for greater state intervention in regulating relations amongst private parties. Others might argue that the court’s application of the “strict scrutiny” test potentially protects private parties from easy state intervention. But these are matters for the Supreme Court to resolve in different cases. But for now,we should be thankful that the court has shown great legal and moral clarity. There will be opposition from self-appointed custodians of tradition. But the

least we can do is say: accept the judgment and move on.

The writer is president,Centre for Policy Research,Delhi

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