We should not minimise the fact that social change in matters as delicate as sexuality is difficult to negotiate in any society. The judgment is admirably tactful in pointing out simply one fact: the state has not been able to prove that it can demonstrate that serious harms result as a consequence of these privat acts. Claims of such harm are often causally unfounded, based on prejudice and often even less plausible than harms that result from many of the practices we do tolerate. At least on this much there is a consensus amongst the 126 nations who have decriminalised this practice before India. Even for those, otherwise uncomfortable, at least this much should be enough to ground the basic legal claim the court has made. There ought to be at least overlapping consensus on this point.

The discourse on toleration this has generated is revealing. There is the usual assortment of religious leaders who are appealing to their traditions. One thing should be clear: a claim can have no standing simply because it is made on the grounds of religion or, as in the case of the VHP, tradition. Without saying so, the court has made this abundantly clear. And it will be interesting if this secular logic is now followed through in all cases pertaining to equality and liberty. The court has fore-grounded personal autonomy as a constitutional value, and potentially set the stage for questioning community practices that impede this value.

The second strand of discomfort with the case is more interesting and could potentially be a resource in sustaining the social legitimacy of the judgment. This strand is not so much intolerant, but is simply uncomfortable at having to take a position on the issue. Its mode of tolerance is a kind of benign neglect, “Don’t ask, don’t tell.” This may not be a perfect normative position. Nor may it be an option in modern society. What they are resenting is not so much the decriminalisation, as much as the need to discuss and take a stand. They do not want to discriminate or stigmatise; what they would like is, to use an old-fashioned phrase, a certain modesty in sexual matters of any kind. This anxiety is in a more general sense inescapable. Our society will have to find intelligent ways of dealing with it. But it would be a mistake to necessarily brand this anxiety as a form of intolerance. In its own ways, this discourse of modesty might sustain the kind of tolerance that simply says, “Let it be.”

... contd.