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It’s high time

Instead of arguing with the court, government should step up, frame legislation on LGBT rights.

By: Express News Service |
Updated: September 12, 2014 12:05:20 am

After a landmark ruling of the Delhi High Court in 2009, which decriminalised homosexuality, there has been a lot of dispiriting backing and forthing on the legal status and rights of lesbians, gays, bisexuals and transgender people. In its latest serve, the Narendra Modi government has questioned the historic judgment of the Supreme Court in April, which recognised the transgender community as the third gender, gave them the right to raise families and transmit inheritance and directed the government to treat them as an OBC community with a right to the benefits flowing therefrom.

The government objects that the ruling suggests L, G and B are subsumed under the portmanteau alphabet T, while they are actually distinct. Indeed, the court had proceeded on the principle of exclusion on grounds of sexual orientation, rather than the specifics, but it may have opened the door to ambiguity. Besides, the government is procedurally correct in arguing that the National Commission for Backward Classes cannot be bypassed in the granting of OBC status. These objections may be in good faith but equally, they may be read as attempts to render the issue so unworkably complex that it can be safely put away behind a hedge of commissions and expert panels for years. The door to confusion was left open by the Supreme Court. It refused to decriminalise homosexual sex but now, it has established that homosexuals are equal citizens. They have complete privacy in the drawing room, but the police have free access to the bedroom.

In the matter of Article 377 of the Indian Penal Code, which criminalises same-sex relations, the Supreme Court had felt that the Delhi High Court had overstepped its bounds. Refusing to strike it down, it looked to Parliament for clarity. The UPA government could have piloted legislation on the matter but did not, though then Prime Minister Manmohan Singh had sought more liberal attitudes to gender. Now, the Modi government is looking to the court for clarity on technicalities. Instead, it should step boldly forward and propose legislation on LGBT rights and attendant affirmative action, if any. As a strong, durable government, it can afford to risk losing the support of a section of conservative voters and Sangh Parivar allies for the present. Instead, in the long term, it can encash the prestige value of overturning India’s archaic gender laws.

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