The recriminalisation of humanity

I checked the morning news from India and felt my blood rush through my ears. One had heard about a less than enthusiastic bench, but the headline `Homosexuality illegal: SC´ managed to shock me nonetheless. A large part of humanity was condemned for the victimless crime of not suppressing their sexuality. Section 377 of the Indian Penal Code, 1860 was held to be legal in its undiluted interpretation.

Impactful as the headline was, it was not accurate. Section 377 does not criminalise only homosexuality, but more generally, any “carnal intercourse against the order of nature”. Depending on how one interprets these words, as suggested in the decision, any non-penovaginal, penetrative sexual activity constitutes an offence punishable with incarceration for as many as ten years, even if it is consensual and between adults. But homosexuals are most likely to be the easiest victims of the verdict.

Supreme but not infallible

“What a slap on the faces of the corrupt” exulted a jubilant journalist friend, reacting to Supreme Court judgment in the 2G public interest litigation. The statement aptly articulates the sentiment of the Indian judiciary. The sentiment is anger. However, the rule of law has never been about slapping faces – a rather passionate reaction for a democratic institution which is required to be dispassionate. The Supreme Court’s decision to cancel the 122 telecom licenses suffers from several fundamental flaws which fly in the teeth of a constitutional democracy.