Absurd Statements from the SC Ruling on Homosexuality (Section 377)

It’s 12:30 am. I’ve just got my hands on the detailed ruling of the Supreme Court that today struck down the Delhi High Court’s progressive ruling on decriminalizing homosexuality. Everyone who reads my blog knows that I normally have a lot of respect for the Supreme Court. But going through today’s judgment, I’m constantly struck by how crazy it is. Frankly, the implications are frightening.  Here are a selection of crazy statements from today’s ruling:

43. While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.

That’s right. Let’s keep an unfair law on the books that deprives lakhs of people of the right to live with dignity because only a few people have actually been convicted under it. What’s the problem? It’s not as if the law is being abused to scare, intimidate and coerce people.

Oh wait…

Next up:

42. Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification.

The SC has taken upon itself to declare homosexuality “against the order of nature”. Well I guess I should stop brushing my teeth now. That’s “against the order of nature” after all. Besides, ask any biologist about homosexuality in the animal world.

It is relevant to mention here that the Section 377 IPC does not criminalize a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation.

Translation: If we ban adoption, it is in no way discriminatory against childless couples because all couples including those with children and those without are prevented from adopting!!

9. In terms of Section 377, IPC, whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, commits the offence. Words used are quite comprehensive and an act like putting male organ into victim’s mouth which was an initiative act of sexual intercourse for the purpose of his satisfying the sexual appetite, would be an act punishable under Section 377, IPC.

Translation. Oral sex is a crime.

However, the Legislature has chosen not to amend the law or revisit it. This shows that Parliament, which is undisputedly the representative body of the people of India has not thought it proper to delete the provision. Such a conclusion is further strengthened by the fact that despite the decision of the Union of India to not challenge in appeal the order of the Delhi High Court, the Parliament has not made any amendment in the law. While this does not make the law immune from constitutional challenge, it must nonetheless guide our understanding of character, scope, ambit and import.

Translation: If Parliament was too lame ass and cowardly to come out with a law, that means the existing situation is A-ok and life is good. The fact that the current state of affairs is unconstitutional doesn’t matter.

Is this the same court that has passed down such awesome and progressive judgments in the past? How do you say stuff like this?

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56 thoughts on “Absurd Statements from the SC Ruling on Homosexuality (Section 377)”

  1. From a purely rational perspective, the SC judgement was legally sound. I find the criminalisation of homosexuality unethical and immoral yes, but I can’t find *legal* flaw in the legal argument provided by the bench. Unlike the US system of governance, the Supreme Court of India is not the sovereign legislative authority, a judge can only argue against, but is not authorised to strike down a legislative enactment based on his personal moral principles if he cannot justify it on equitable grounds.
     
    I think rather than critiquing the SC bench on its judgement and comparing it to countries that have a different judicial power structure, we should make use of our democratic authority by pressuring the parliament to repeal section 377 from the Indian Penal Code. To be honest, there are a LOT of provisions in the IPC that I find ethically unsound which I believe, needs a serious revision. I sympathise with my homosexual friends with the same fervour that I sympathise with those who become victims of the warped rape laws in India.
     
    And Fem, you want to be careful when you call a Supreme Court judge a bigot. That would be criminal offence, under the Contempt of Courts Act, 1971.

    Reply

    • In reply to Akhim Lyngdoh

      No. The whole point is that Section 377 is unconstitutional. It is the Supreme Court’s job to strike down unconstitutional laws. That is the whole purpose of Article 13. It’s finding of unconstitutionality was wrong. Therein lies the stupidity of the judgment. In this matter, there is very little legal difference between the US Supreme Court and the Indian Supreme Court.

      It’s called judicial review and is a part of decades of Indian jurisprudence.

      And if Fem is calling the court a bigot, I am openly saying that I have contempt for it. We should all be proud of speaking the truth and I accept the consequences openly.

      Reply

      • In reply to bhagwad

        I am not surprised that you have contempt for the courts, when they make a judgement that is contrary to your personal opinions. Most desi Indians have a general contempt for law, legal institutions and due process – which is one of the many reasons why the country is such a lawless mess.

        Reply

      • In reply to bhagwad

        ” My concern for human rights and preserving fundamental freedoms is the reason for India’s lawlessness.”
        Your contempt for legal institutions, when they do not strictly conform to YOUR subjective moral or personal principles, is a drop in the sea of lawlessness prevalent in Indian society. Your self-aggrandising attempt to show a concern of human rights is of course a red herring – not unlike how the Robin Hood fallacy is pleaded by a lot of Indian criminals in defence pleas.

        Reply

      • In reply to Akhim Lyngdoh

        No, no I absolutely agree! Caring for fundamental rights and fighting oppression through peaceful and legal means is absolutely the reason for India’s lawlessness and I commend you for pointing this out so clearly. I couldn’t have said it better myself.

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      • In reply to bhagwad

        “Caring for fundamental rights and fighting oppression through peaceful and legal means is absolutely the reason for India’s lawlessness…”
        The context of this argument is the violation of Contempt of Courts Act 1971, by verbally attacking a judge instead of critiquing the judgement. That is by no means ‘fighting oppression through legal means’ since what you propose – contempt of courts and the legal system, is by no means ‘legal’.
         
        It appears that you, like the average desi, seem to be of the impression that the validity of laws are subjective to your moral interpretation. I see this attitude all the time in Delhi – where jumping red lights, littering on the streets, sexual harassment of women on the streets and wife beating is considered legally justified by the mainstream. Contempt of laws is just a genus of this social phenomena.
         
        Don’t try to cover your contempt for the Rule of Law under a guise of concern for human rights and what you think is ‘fighting against oppression’. Such a stance makes sense only when we talk of laws in a fascist state and the legal system is strictly Austinian. Not the case in mainland India.
         
        And FYI, blogging is for all intents and purposes, an exercise of narcissism – not ‘fighting’ for a cause.

        Reply

      • In reply to Akhim Lyngdoh

        ” by verbally attacking a judge instead of critiquing the judgement.”

        You’re right. I haven’t critiqued the judgment at all. I’ve just been name calling all this while.

        It appears that you, like the average desi

        Since you keep talking about the “average desi”, it’s pretty clear that you yourself are the average desi. The “average desi” as you keep calling them is a racist fellow who looks at people’s nationalities and indulges in ad hominems instead of having a clean discussion.

        And FYI, blogging is for all intents and purposes, an exercise of narcissism – not ‘fighting’ for a cause.

        Citation please.

        Finally, you will please stick to the arguments alone and refrain from irrelevant ad hominems as you’ve started doing for the past few posts. Be respectful and polite. Otherwise don’t bother commenting.

        Reply

      • In reply to bhagwad

        “You’re right. I haven’t critiqued the judgment at all. I’ve just been name calling all this while.”

        Red herring again. We were discussing contempt of court, which according to the statute I mentioned, Fem is guilty of – when she called the judge a bigot. A bigot is a person who shows an intolerance, hatred, contempt or fear of persons different from themselves. Unless she personally knows the judges and ascertains what their views are, she cannot, in good faith, declare him a bigot based on his legal pronouncement. A judge is dutybound to give judgements based on a fair interpretation of the law in place – not on his personal moral and value system. Hence, the institution for the indemnity of judges for their judicial decisions.
         
        Her attack on the judge was legally malafide, even if she and you personally feel that it was justified.
         

        “Citation please.”

        Akhim Lyngdoh, 24 December, 2013. A personal opinion stated on bhagwad.com; after having empirically observed scores of bloggers and the dissonance between the said bloggers’ passion in their writings and their desire to be heard and ‘respected’ for their ’causes’ – contrasted with the complete apathy towards actually fighting for their causes in real life.

        Reply

      • In reply to Akhim Lyngdoh

        “Red herring again.”

        I don’t think you know what red herring means. Replying directly to your quote to demonstrate its absurdity is not a red herring. Methinks you protest too much. Since you were replying to me personally, you have to show that I abused the judge. Or specified that you were not replying to my comment. Which would be weird since you’ve cited my quotations.

        Akhim Lyngdoh, 24 December, 2013.

        Citation carries no weight. No documented evidence, no experiment, no published results. Nothing.

        Actually made all the worse unless you’ve personally met all the bloggers in real life to ascertain their motives. Dismissed as mere prejudice.

        Incidentally this is also an example of a false dichotomy logical fallacy. There’s no reason why a blog can’t be an exercise in narcissism and also fight for a cause!

        Reply

      • In reply to bhagwad

        “Since you were replying to me personally, you have to show that I abused the judge.”

        Oh no, please read the original comment again. You INVITED yourself INTO the contention, by responding to my comment addressing Fem.
         

        “Citation carries no weight. No documented evidence, no experiment, no published results. Nothing.”

        As I said, it is a personal opinion, meant to be a sarcastic jibe against your self-aggrandising indignation. My apologies – for overestimating your sense of humour.
         

        “There’s no reason why a blog can’t be an exercise in narcissism and also fight for a cause!”

        Doesn’t fly. If you actually fight for a cause, it implies you don’t have what it takes to obsess with yourself to the point of being a narcisst.

        Reply

      • In reply to Akhim Lyngdoh

        You INVITED yourself INTO the contention, by responding to my comment addressing Fem.

        Yep. I did. That doesn’t mean you didn’t reply to me.

        “As I said, it is a personal opinion,”

        Oh you mentioned that it was a personal opinion when you first said it? Must be my mistake for reading it as if you were presenting it as fact. May have had something to do with the fact that you were presenting it as a fact!

        If you actually fight for a cause, it implies you don’t have what it takes to obsess with yourself to the point of being a narcisst.

        Citation please. Keep in mind that everyone is a narcissist to varying degrees: http://lifecounsel.org/pub_floyd_understandingNarcissism.html

        Actually, don’t bother. I’m ending this right here in the interests of going back on topic. Further irrelevant posts will be deleted.

        Reply

      • In reply to bhagwad

        “Since you keep talking about the “average desi”, it’s pretty clear that you yourself are the average desi.”

        I am not a desi, average or otherwise. The ‘ad hominem’ you complain of, is actually a critique of a specific pattern of behaviour that I have observed as prevalent among a lot of desis. Hence, the usage of the qualifier ‘average’ to denote that your specific behaviour, as outlined here, is the grundnorm that I have observed.
         

        “The “average desi” as you keep calling them is a racist fellow who looks at people’s nationalities and indulges in ad hominems instead of having a clean discussion.”

        According to Oxford Advanced Learner’s Dictionary, a racist is someone who:
        1) prejudices, discriminates against or antagonises someone based on their race
        2) holds their belief that one’s own race is superior.
         
        Rebuttals:
        1) ‘Desi’ is not a race but a collection of races localised in a geographic region. This negates an essential, ‘based on their race’
        2) A bonafide critique of this group of people, against a pattern of observed social behaviour – does not qualify as prejudice, discrimination OR antagonisation
        3) I don’t believe that my race is superior. It is irrelevant.
         
        I rest my case. Now please continue….with the labelling.

        Reply

      • In reply to Akhim Lyngdoh

        You might keep in mind that in many cases, the law’s validity is subject to moral interpretation. Specifically constitutional morality and not the morality of any particular person. This is a pretty well established principle of jurisprudence. All laws have to be subject to the basic structure of the constitution.

        So if my personal moral code is in line with constitutional morality, then my moral interpretation of the law has a definite bearing on its validity.

        As far as the “racism” thing goes, you’re either prevaricating or haven’t understood what I’m saying. Still, I’ll give you the benefit of the doubt. I use the word “racism” to refer to judgment based on any characteristic of a person that can’t be changed and is prima facie irrelevant to the topic of judgment.

        From this perspective, casteism is merely a form of racism even though India uses the same narrow technical argument you yourself are using to defend against charges of racism in the UN.

        In any case, this entire line of discussion is irrelevant and is a consequence of you bringing in irrelevant things like “desis” etc. Please keep the discussion on topic from here onwards.

        Reply

  2. Good Decision By SC! Homosexuality is disgusting. Ok it might fit in the western culture, but not here in India. What next should we copy from USA? Teen pregnancy and school shootings? Today u people want homosexuality decriminalised, tomorrow u will demand Incest and Bestiality to be decriminalised.

    Reply

    • In reply to Yash

      It’s not the court’s job to follow “culture”, but to interpret the Constitution. India is a democratic republic, not the Taliban. Over here, we let people live their own lives as long as they don’t get in the way of anyone else.

      And incest laws are absurd and need to be removed. There’s nothing wrong with sex between siblings as I’ve written earlier: http://www.bhagwad.com/blog/2013/rights-and-freedoms/are-incest-laws-absurd.html/

      Reply

      • In reply to bhagwad

        Yes the court simply said it is not a law making body, but its job is to only follow the law passed by law-makers (parliament). So the delhi HC cannot strike out that law. It is the job of the government to introduce a new law as a bill and try to pass it with majority. After all it is the Supreme Court, they are India’s most intelligent judges. Whatever court says, we have to follow.

        And the culture thing was my own point.

        Reply

      • In reply to Yash

        The court’s job is not to only follow the law. Article 13 of the Indian Constitution puts the court in charge of striking down unconstitutional laws.

        The SC protects us from parliament. It stands ready to throw out laws that violate the Constitution.

        Reply

      • In reply to bhagwad

        You’re proper sikkk saying “there’s nothing wrong with having sex with siblings ” I’ve met some weird screwed up people but you are the most weird (sikkkk )

        Reply

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