ET View: Welcome endorsement of liberty in decriminalisation of consensual sex between adults

One more colonial vestige drops off, and the collection of groups of Indians stigmatised by law and custom loses one member. The Supreme Court once again advanced the cause of liberty and democracy in India by holding Section 377 of the Indian Penal Code to be illegal, and going on to declare that sexual orientation, derived from nature, rather than nurture or choice, is a matter of personal liberty that the state has no business to interfere with.

This does not mean that all problems of the LGBTQ community are over. Custom takes time to catch up with the law — witness a number of reprehensible customs, ranging from dowry and female foeticide to under-age marriage and discrimination on the basis of caste and religion. The state did the pragmatically right thing by not interfering with the Court — by not trying to defend Section 377 as it stands and submitting in writing to the Court that it would leave decriminalising consenting sex between adults to the wisdom of the Court — in pursuing the logic of the democratic values of liberty, equality and fraternity to arrive at the happy conclusion that homosexuality is not a crime. Now, the state must go beyond liberal passivity to active promotion of the legal norm on homosexuality, when it comes under attack from the likes of Ramdev, who treats it as a disease to be cured, so that it could evolve into the social norm as well.

It is welcome that all five judges on the Constitution bench reached the same conclusion, although articulated through four separate judgments.