Friday, July 10, 2009

So near, yet so far

PILSARC Editorial

"Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation’s passion…….. (The Resolution) seeks very feebly to tell the world of what we have thought or dreamt of so long, and what we now hope to achieve in the near future.." - quoting Nehru in their landmark judgment, Justice A.P. Shah and Justice Muralidhar have given the gay community a reason to celebrate.

Notwithstanding the fact that this judgment is only applicable in Delhi, it is certainly one of the most progressive rulings by an Indian court. The judgment declared "that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution". It expands the meaning of sex in the anti-discrimination article 15 of the Constitution, to include sexual orientation.

The battle is won, but not the war. This judgment has been challenged in the Supreme Court and the apex court has issued notices to the relevant parties. The decision of the Supreme Court will be applicable throughout the country. The Supreme Court is the last-leg of the race for the activists fighting for the abolition of this archaic provision, as the political will to repeal is certainly lacking.

The Delhi High Court judgment is a well reasoned one. The arguments advanced challenging this judgment are based on morality, morals of the majority. Our country has crossed the threshold of these arguments - else untouchability would have never been abolished. The hope is that the Supreme Court agrees with the High Court that "the underlying theme of the Indian Constitution, it is that of 'inclusiveness".

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