SC restores India’s fundamental plurality

It was a stunningly progressive verdict—peppered with profound words that framed the centrality of individual liberties in India’s constitutional ethos.

Published: 07th September 2018 04:00 AM  |   Last Updated: 07th September 2018 01:22 AM   |  A+A-

I am what I am, so take me as I am.” Those resonant words of German philosopher Arthur Schopenhauer rang through the high-vaulted halls of the Supreme Court on Thursday, as a five-judge Constitution Bench made history by taking the criminal taint away from homosexuality. It was a stunningly progressive verdict—peppered with profound words that framed the centrality of individual liberties in India’s constitutional ethos. Chief Justice Dipak Misra, who seems to be making a point of delivering a string of progressive verdicts before he bows out less than a month from now, is fond of quoting from the canons. Schopenhauer is an inspired choice.

The Oupnekhat—the Latin version of Dara Shikoh’s Persian translation of the Upanishads—was always to be found open on his bedside table. One of the first from the Continental stream to dive into Indic thought, uncharacteristically for a philosopher he also wrote openly about sexuality, including a qualified defence of homosexuality. It is fitting, therefore, that his words grace a judgement that will be quoted in any discussion on Indian law and Constitution.

Rights guaranteed to every individual Indian cannot be held hostage to any “majoritarian” social consensus on morality, the court ruled, striking down key clauses of Section 377. Only sexual activity with animals and such like have been retained under the rubric of “unnatural sex”—that should clarify to the sceptic how reflective of Victorian morality the original law was, and how preposterous and illogical its basket of concepts were. Happily, the progressive spirit of the landmark Delhi High Court judgement of 2009, under Justice

A P Shah, the first time India’s legal system had moved to outgrow this colonial myopism, is now restored. Also restored is India’s fundamental plurality. Our traditions, folk and classical, always possessed an openness towards a much wider palette of ways of being human than the colonial mind could envisage—fluid sexuality was a basic part of that. A door has been opened in history: India’s LGBT community can now live and love with dignity.

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