Delhi High Court decriminalizes homosexuality, 150 years after it was deemed illegal on the Indian subcontinent. You should take a few moments to read the whole thing – it’s fascinating and oddly readable. A few things that immediately struck me:
The court took into account that this is a law that dates back to the Dark Ages and has since been repealed in the country of its origin.
The petitioners actively used its history as a law steeped in Judeo-Christian beliefs of copulation strictly for the sake of procreation to argue that it can’t be imposed on citizens of a secular republic.
The law was drafted and signed into law by Lord Macaulay – does this mean we can now call all those who protest the High Court’s judgment as a move “against Indian culture and values” Macaulay’s Children? That crowing you hear isn’t me, it’s roosters coming home to roost.
The Home Ministry’s reason for opposing the petitioners (and its fellow Ministry of Health) was that this was the law that it used in the prosecution of child abuse allegations and for “making up lacunae in rape laws” – because God forbid someone in the Home Ministry actually do their job and come up with comprehensive laws that specifically tackle child abuse and rape.
Furthermore, the Home Ministry is under the impression that the only thing keeping India from descending into full scale gay orgies on the streets in broad daylight is the existence of this law. Repeal it, and tomorrow you might just find entire neighborhoods singing Khullam Khulla Pyaar Karenge and sexing it up as far as the eye can see.
The Home Ministry further argues that India is too homophobic a country to let homosexuals go free. The Home Ministry works for India, right?
To this the National AIDS Control Organization (NACO) and the Ministry of Health said: Fuck You. I paraphrase.
NACO estimates there are 250,000 sexually active gay men in India. And 8% of them are infected with HIV as opposed to 1% of the total population. Only 146,397 of these men are covered under various outreach programs. I can only imagine how many more are in the closet and what their state must be.
There is no mention of lesbians or what their status might be.
a coalition of 12 organisations that represent child rights, women’s rights, human rights, health concerns as well as the rights of same sex desiring people including those who identify as Lesbian, Gay, Bisexual, Transgenders, Hijra and Kothi persons (which are referred to in the affidavit as “LGBT”).
Just one example of the misuse of Section 377: Lucknow police arrested and detained health workers employed by an NGO working in an AIDS outreach program on charges of distributing “obscene literature”! The other examples get progressively more violent.
“Learned ASG”: in the western societies the morality standards are not as high as in India. So an Englishman gives us this law in the 19th century but we’re a better people in the 21st because we refuse to let it go? Well, that clears that right up. By the way, have you heard? Australia is racist.
History will note that Maneka Gandhi struck the most significant blow for personal freedom in India.
Indian judges like to have philosophical discussions – today’s topic is dignity:
Human dignity rests on recognition of the physical and spiritual integrity of the human being, his or her humanity, and his value as a person, irrespective of the utility he can provide to others.
Indian judges like to read stuff from everywhere while considering a decision – this is the last place I expected Roe v. Wade to come up. Bad news for the parochial-minded, I guess. Also, there’s an actual person called Kharak Singh in U.P.? Awesome!
Eunuchs were placed under the Criminal Tribes Act – one of the most vile laws enacted by the British. I did not know that! So Jawaharlal Nehru condemns it in 1936 and the government headed by his family more than 70 years later can’t quite bring themselves to sweep away the last bit of it? I’m so shocked….NOT.
Blah blah blah, the judges feel amoebas are smarter than the Home Ministry.
The Fundamental Rights, therefore, were to foster the social revolution by creating a society egalitarian to the extent that all citizens were to be equally free from coercion or restriction by the state, or by society privately; liberty was no longer to be the privilege of the few. The Constitution of India recognises, protects and celebrates diversity. To stigmatise or to criminalise homosexuals only on account of their sexual orientation would be against the constitutional morality.
Thus, the Home Ministry is a bunch of lazy amoebas who don’t bother to read properly, much less do their job and come up with better laws.
Moral indignation, howsoever strong, is not a valid basis for overriding individuals’s fundamental rights of dignity and privacy.In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view. In Indian context, the latest report (172nd) of Law Commission on the subject instead shows heightened realisation about urgent need to follow global trends on the issue of sexual offences. In fact, the admitted case of Union of India that Section 377 IPC has generally been used in cases of sexual abuse or child abuse, and conversely that it has hardly ever been used in cases of consenting adults, shows that criminalisation of adult same- sex conduct does not serve any public interest.
Hoist on their own petard! And thus:
We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution.
And here’s a ton of precedent that says they’re right. Now will Parliament please do its job and enact some decent laws? The End.
It’s really a small step – the High Court in one city passing judgment on an issue that concerns the whole country. In all probability, this case is next going to the Supreme Court, which means it’s going to take a couple of years at least before we see anything concrete emerge from this ruling, if then.
The good news, of course, is that when the Delhi High Court first tried to pass the buck on this case a couple of years ago, it was the Supreme Court that told them to please not emulate our dearly beloved Government of India and to do their job instead. And so they did. Chances are very good that the Supreme Court will also feel the same way, especially with at least one branch of the government telling it like it is.
As W.H. Auden put it:
So many try to say Not Now,
So many have forgotten how
To say I Am, and would be
Lost, if they could, in history.