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?
I see what you are saying bhagwad, but asking about homosexuality in the animal world versus the human world is not an apples to apples comparison. Do you know, for example, what male lions do when they take over a new pride? They kill the lionesses cubs that are not of his loins. They are animals, does that mean we do that do?
So the whole “animal” thing seems like more of a copout than anything.
I’d say to solve this problem, why shouldn’t the homosexuals of India simply leave? Most homosexuals in most countries are in the upper strata of society. Those at the lower end simply either aren’t gay or are able not to express it. Come down here to South Central Los Angeles, you won’t see a single gay black man here, trust me ;)
In reply to Western Point of View
I’d say to solve this problem, why shouldn’t the homosexuals of India simply leave?
Why should they leave?
In reply to RenKiss
Why not? See in the US, the idea of the Constitution was to have VERY minimal federal laws, but the STATES can decide whatever they want. Many have argued that the Lawrence case in Texas earlier in the 2000s actually was going against the constitution in that Texas as a soverign STATE of the United States has every right to tell homosexuals what to do. The argument there is in the US, you can ALWAYS relocate to a more desired state that allows for you to fulfill your lifestyle, in this case, say homosexuality.
In reply to Western Point of View
Well that’s actually not quite true. The states can’t always do what they want, as there are times when Federal will trump state laws (actually the majority of time it does). Also don’t refer to homosexuality as a “lifestyle” because that’s stupid. So no, states don’t have the right to tell homosexuals what to do because that’s infringing on their rights and that’s discrimination. Since the Supreme court ruled that banning same sex marriage is unconstitutional (which argues that banning it violates 14th Amendment) states with gay marriage bans are violating.
Also in the long run, I believe all states will end up legalizing gay marriage, it’s only a matter of time. So in reality, if people don’t like that, they can move to a country where there is no gay marriage. ;)
As with the decision with the Supreme court of India. These bans on “gay” sex or what have you have no rational basis, it’s based on nothing more than people’s disgust of gay people. These laws are just about enforcing one’s morality on a group of people.
In reply to RenKiss
The current status quo of what we call the “federal government” has become nothing but a dictatorship. Before when the Constitution was written, states were almost ENTIRELY free to do what they wanted. THe fed has become more dictatorial in everything the states do. If Alabama wants segragation (and I’m not white) they have every right to do so, for example. If Texas wants to ban sodomy, it should as well. THis was the intention of our forefathers and libertarianism at best.
In reply to Western Point of View
No it isn’t. If your laws violate the rights and liberties of others, then that’s against the constitution. Plain and simple. Alabama cannot have segregation because it’s an unjust law. Texas cannot ban “sodomy” because that’s infringing on the rights of others, not just homosexuals. If it’s an unjust law, citizens are allowed to fight these laws and states have to change them. FYI, it would be very helpful if you actually studied how American government works.
In reply to RenKiss
I really don’t mean to change the subject, but these new laws came in as a result of the Federal Government bloating itself. The original intention of the US was to have states under one umbrella but have their own set of rules. Too bad we’ve gone a little far from that.
Citizens can fight anything they want and that is their right. Doesn’t mean it will come true. Some citizens are fighting their right to drive more than 100 mph. Will it come true?
BTW, how is segregation unjust (and no I am not white)? If I own a PRIVATELY run restaurant, I have every right to have a separate bathroom for blacks or for whites. It is MY restaurant.
The sodomy thing gets a little tough however. Many lawmakers such as Ron Paul (libertarian) agree that marriage shouldn’t be argued, but at the same time disagrees with the courts handling of the sodomy issue.
In reply to Western Point of View
The “animal” part is usually a response to those who say it’s “against nature”. I agree – doing something or not doing something based on whether or not animals indulge in the same behavior is crazy.
From yesterday, you have been raging against this ruling. And I agree: why should the govt step in between consenting adults?
But, I wonder. As you rage over this loss of personal freedom of Indian homosexuals, the Maharashtra Govt is set to pass the anti-superstition Bill in the Assembly today. Millions of people in Maharashtra will lose their personal liberty to “Maharashtra anti superstition authority” also. They will lose their right to worship as they see fit.
Does consent not apply to religious people? Are they less Indian than you are? If an adult chooses to believe in magic, how come the state can throw him in jail for that belief?
Does the anti-superstition bill make you ashamed to be an Indian? I didn’t. Now, THAT is why you are an “elite” :)
In reply to Abhishek
There are only so many things I can blog about and worry about at one time. If a person chooses to talk about one topic, it makes no sense to ask “Why aren’t you talking about this other one” instead? I’ve paid less attention to the bill you’re talking about because:
1. I haven’t read it
2. It’s state wide
3. The Supreme Court hasn’t made crazy statements about constitutionality.
And again…even if you disagree with me, that’s fine. What is this “elite” business you keep talking about. You seem to apply this tag in an arbitrary manner without defining the kind of things that qualify a subject to be “elite”!
In reply to Abhishek
http://en.wikipedia.org/wiki/Anti-Superstition_and_Black_Magic_Ordinance
the law seems to be cracking down on fraudulent misrepresentation and using religion to defraud or infringe on rights of people like exorcism or claiming someone is possesed… is there anything i’m missing???
In reply to csn
Who are you or the government to decide which belief is fraudulent and which is not?
How about a law that prevents fraudulent use of science by the organic food/ environmentalist mafia?
How about a law against fraudulent misrepresentation of nuclear power by left wing groups?
I think those are superstitions. Who gives you the right to decide my belief is a superstition and yours is not? Why should I have to answer to an all powerful “Anti superstition commission” for my beliefs?
In reply to Abhishek
sorry for the late reply.:D
if the environmental lobby misuses facts to cheat people or the government of course they will be taken to task.
depending upon the damage their claims cause the government can initiate criminal action and the effected parties can seek compensation and punitive damages through civil courts… same goes for the nuclear power
also if something is empirically proven and peer reviewed it is a fact.
you don’t have to answer to any commission for holding any belief. the law simply states that you cannot use your belief to justify unlawful activity or restricting someone’s freedom….
In reply to csn
The safety of genetically modified food has been repeatedly affirmed by numerous peer reviewed studies. The US National Academy of Sciences has accepted that there is no evidence that GM food causes adverse health effects.
How is the environmental lobby, groups like Greenpeace, etc different from religious groups that spread fear and lies against homosexuals?
Let me remind you that without GM food, 3 billion people on this planet would literally starve to death. As one of the world’s poorest nations, who could need GM food more than India? This same Bhagwad, who is ashamed to be an Indian because the SC left it to Parliament to decide laws on homosexuality, didn’t give a damn when the same SC recommended a ban on GM food in July, 2o13.
Bhagwad would jump in and say: I have not spoken about GM food/I have not read about it, etc.
But the fact is that a person enjoys credibility in accusing others only when it is clear that he/she has a past record of attacking injustice committed by his own ideological cousins. If you constantly attack the right wing and claim that you dont have enough time to be bothered about liars on the left, it makes you a partisan, not someone who supports justice.
In reply to Abhishek
Ok, this is the first time you’re talking about left/right. Please tell me who is my “ideological cousin” and what makes you think I’m on the “left”. I’m curious. Is this what you’ve been thinking all along? And I “constantly attack the right wing”? Are you saying that I never criticize other parties?
I don’t know about you, but banning GM food just doesn’t strike me the same way that human rights violations does. It’s more of a policy matter. We all have to pick and choose our causes. Just because I write about one set of things doesn’t mean I have to take the burden of the entire world onto my shoulders. There are thousands of things I don’t write about. I don’t write about child abuse, poverty, unfair employment practices and many others. That doesn’t mean my criticisms about issues I do care about is any less meaningful
After all, I write to make myself feel good. I have no obligation to anyone or anything else.
In reply to bhagwad
“And I “constantly attack the right wing”? Are you saying that I never criticize other parties?”
Yes. Show me 1 example where you have attacked some left winger or some left wing propaganda. The left wing wields at least 50% (much more?) of power across the world, in India, US or Europe.
It cannot just be a coincidence that ALL your criticisms just happened to be against the right wing. Its possible its just an accident, but its more likely to be deliberate.
Just like if a kid has failed all his math exams in class, but gets 100% in the board exam, dont blame people for suspecting he cheated. There is a chance that the student might just have had a sudden flash of genius, but most people will suspect cheating.
Of course, its your blog and you write about things important to you, but I presume you put it up publicly for others to read and debate. And if you constantly attack one side and claim not to be bothered by the other, you will be perceived as partisan.
In reply to Abhishek
I thought the Congress is left wing. You want examples of me criticizing the Congress?
http://www.bhagwad.com/blog/2011/politics/lokpal-government-claims-that-no-one-can-criticize-them.html/
http://www.bhagwad.com/blog/2011/politics/the-indian-government-can-only-stop-peaceful-protests-like-hazare.html/
The naxals are classic left wing:
http://www.bhagwad.com/blog/2010/politics/do-you-sympathize-with-the-naxals-opinon-poll.html/
Otherwise I’m not really sure of what you want to know. The “left” is socialism. Is that what you’re looking for? Criticism on socialism?
In reply to bhagwad
This is like the time Sagarika Ghose got angry about being attacked constantly for being pro-Congress. And she went back…. 8 years back…and found a 2005 article where she had criticized Congress.
It resulted in a Twitter-wide ROTFLMAO. 8 years back to find 1 time she had criticized Congress… LOL
A mere glance at your blog will reveal your criticism of the right wing. To find criticism of the left, you will have to dig deep, real deep.
Even Advaniji criticizes the BJP once in a while :) Maybe he is non-partisan too :)
In reply to Abhishek
Right. I forgot that the Lokpal agitation, section 66A and all other scams etc of the Congress were 8 years ago.
Besides, it’ll be helpful if you could explain to me exactly what “left” means. The right is pretty easily definable. But the “left” is pretty vague and deals with equality etc. I would in fact say that there is no real left leaning party in India. But even that definition is suspect since there are economic systems, social systems etc that are all separate.
I’m interested in human rights, gender equality and equality in general. Who gives a damn about “left” and “right”?
Sharing.
I fear that court will treat a sexual intercourse using condom as ‘unnatural’
In reply to Manikandan
Exactly. Not only that:
1. Oral sex is illegal
2. Sex with infertile men/women is illegal
3. Sex with sterilized men/women is illegal
At least some sane people around.
http://www.ndtv.com/video/player/news/we-have-gone-back-to-1860-chidambaram-on-gay-sex-verdict/301060?pfrom=home-lateststories
In reply to musingsofanerraticmind
Good to know. Whether all this will translate into legislative action is yet to be seen. Nevertheless the fact remains that the Supreme Court has failed us and left us at the mercy of parliament. Let’s not forget that this is not just about homosexuality, but has much broader implications as well.
The message that the ruling sends is extremely troubling. It is a huge disservice to Indian citizens, not to mention it makes the Supreme Court appear regressive.
It s sooo ridiculous and demeaning to think such under evolved minds are given the authority to set rules and regulations for the rest of the nation to follow……it all boils down to the system of education that allows any 1 who is capable of jus passing few exams on paper (jus by memorizing facts by rote and not by thinking or analyzing) s considered fit enuf for such highly responsible positions involving ‘Life and death issues of millions in the nation..!!! Dunno wat next…!!?? May b they wd rule that women should stop going out to work…..and bear children frm menarche to menopause….!!!???? B’coz all i understood of the details of the judgement ws that no1 shd engage in any act of ‘love or gratification, except to yield progeny…..!!!
In reply to suneetha
That’s exactly what they’re saying when they said “against the order of nature”.
this is a terrible judgement by the SC… all these anti-LGBT arguments put forward by various groups over the years are irrational and ludicrous. “against the law of nature” “unnatural and inhuman” comparisons to bestiality are absurd and
illogical. the government has no business regulating what happens between two consenting adults. section 377 is unconstitutional and the SC should exercise judicial review and strike it down. we live in a democratic republic which means that regardless of the will of the majority, the government must safeguard the fundamental rights of all citizens..
“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.”
this is an atrocious statement. “it’s okay even if you’re gay, you’re only a criminal if you fall in love with another man and have sex with him”…
and i was actually hoping they were on the brink of recognizing same sex marriage and civil unions… just my naivete i guess
In reply to csn
I’m as shocked as you are. I can only pray that a review petition or a constitutional bench will hear the case. What else can we do?
i actually had a lot of admiration for the indian judiciary before this happened. most of the well publicized judgments
in recent times have been well thought out, progressive and have placed a strong emphasis on fundamental rights…
a lot of indians were unhappy with the whole ajmal kasab case and most were in favor of hanging him without a trial…
but the fact that the indian judiciary didn’t do this and followed due process was indicative of progress and respect for individuality and civil liberties… all of it is ashes now…
In reply to csn
Agreed 100%. I feel deeply betrayed.
All they had to do was to declare the law unconstitutional. That was pretty much within the scope of the SC. I think this could merely be a coward stance but it is also possible that the individual person passing this judgement is also a bigot. Who knows?
In reply to Fem
Hopefully this will be referred to a five judge Constitutional bench.