In the unresolved diplomatic spat over the conduct, arrest and treatment of an Indian consular officer in New York, India has been angered that allegations by her maid are treated as facts. Yet its own rape laws come dangerously close to sanctifying this conflation of charges as proof.

In turn, some Indians have suggested subjecting gay U.S. officials to India’s penal code that criminalizes same-sex relations. Is this any less “barbaric” for millions of Indian citizens than the unconscionable treatment of one Indian official by New York’s finest?

Rape is a horrific problem in India, but compromising due process does not serve the ends of justice. Facts must be documented, evidence evaluated and guilt or innocence established.

Neither all men nor all women are criminals by virtue of gender; most relations of authority do pit women in an unequal power relationship with senior male colleagues; but in some cases it is possible for wrongful or maliciously false charges to be leveled for whatever reason (including coercion by male relatives wanting to settle scores with property disputants, social rivals or political opponents). Any law that can be abused, will be.

Prem Shankar Jha shows how the burden of proof has been reversed to invite miscarriage of justice. In the absence of any corroborating physical evidence, if accuser and defendant swear to coercion versus consent respectively, judges must base their “verdict upon the premise that, in matters pertaining to sex, women cannot lie under oath!” (Sunday Times of India, Dec. 22)

Ratna Kapur argues that the new law “has taken us dangerously in the direction of a sexual security regime rather than toward more rights” (Hindu, Dec. 21) — a pathology demonstrated in the Supreme Court’s verdict of Dec. 11 upholding the criminalization of conduct that should be left to personal preferences.

Section 377 of the Indian Penal Code was enacted by the British in 1860 to impose Victorian public morality on Indian society. The Delhi High Court famously repealed it in 2009. The Supreme Court reinstated it, arguing that repeal is a matter for the legislature. In a curious ruling, two judges held “those who engage in carnal intercourse against the order of nature” cannot claim equal constitutional protection. The language hints at prejudiced private morality more than constitutional-legal gravitas.

India’s constitution enshrines fundamental rights precisely because the legislature cannot be trusted to deal with the problem in a principled, just and equal way. The Supreme Court has an enviable international reputation for defending, even expanding, the protection of constitutionally mandated human rights against legislative encroachments and violations by the executive and police.

The court’s verdict boils down to resolving the competing imperatives of constitutional versus socio-political morality. The former cannot be collapsed into the public morality of the majority, for down that route lies the tyranny of the majority. Liberal democracy instead is the art of the right balance between majority preferences and minority rights.

This is pertinent in a country as diverse as India where every citizen is likely to constitute a minority of a sort. Conversely if prevailing practices are to be sanctified, the judiciary should reinstitute dowry and untouchability and legalize bribery.

A counter-majoritarian role is part of the constitutional job description of India’s senior judges. An important chapter is the one on fundamental rights that seeks to withdraw them from the political arena, remove them from political controversy, and put them safely beyond the reach of political majorities. Otherwise, the entire constitutional philosophy underpinning the balance between core political values and moral majority values is undermined.

Laws reflect the social beliefs and values of the majority of people, or of the ruling elite, at the time of enactment. As values and practices change, some laws become obsolete and are no longer enforced.

A good example is the miscegenation laws in the U.S. that criminalized sexual relations between different races. Generally there is a lag between nonenforcement and repeal. In this interregnum, a failure to prosecute is no immunity from police persecution and public vilification.

The social purpose of criminal law is not to target and vilify activities and practices of groups that the majority dislikes. The consensus of modern medical and psychiatric opinion holds that homosexuality is not a disease or a disorder, but one among different expressions of human sexuality. Leaving S.377 on the statute books reduces all homosexuals to the status of “unapprehended felons.” This turns their lives into one of misery, fear and apprehension. It opens the door to discrimination in employment and housing; social and police harassment; blackmail in a context where police extortion is a national pastime; and private violence rooted in publicly legitimized bigotry.

As a shield against being criminalized in law and stigmatized in society, the affected people may agree to enter into heterosexual marriages, with adverse consequences for the emotional health and well-being of partners and children.

Another unintended and perverse but predictable consequence is the reluctance to seek medical help for suspected sexually transmitted diseases, including HIV/AIDS, with detrimental implications for public health. And they are more vulnerable to recruitment by foreign intelligence services.

The Supreme Court ruling was hailed by conservative religious leaders but condemned by most media commentators for targeting members of a minority for who they are. While the ruling Congress party appeared open to considering an urgent repeal of S.377, the opposition Bharatiya Janata Party seemed divided on the issue.

Thus the decision pushed the issue and fate of same-sex relationships firmly at the vortex of religious, social, political and judicial beliefs and cross-currents. It is particularly surprising that the BJP — the self-proclaimed custodian of Indian cultural nationalism — would privilege the social morality of Victorian England above both precolonial indigenous social practices (as depicted in any number of temple imagery) and the constitutional morality of independent India.

Part of the superior appeal of Hindu society also is the long tradition of pluralism and tolerance. The antique law should be swiftly repealed on review by the full bench of the Supreme Court or, failing that, by Parliament with all-party support.

Ramesh Thakur is professor in the Crawford School of Public Policy, The Australian National University.

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