A corrective move by the Indian Supreme Court in overturning an “over-reaching verdict” passed by a Delhi High Court vis-à-vis the “constitutional validity” of Section 377 of the Indian Penal Code is being flayed publicly as usual.
The deafening outrage is the loudest from within India and beyond from among Indian expatriates, non-resident Indians and self-styled authorities on Indian systems.
Support to the Supreme Court decision comes from the most unimaginable quarters: American Family Association’s Bryan Fisher has nothing but praise for India’s controversial anti-gay sex law.
In India, if a law interpreted as being “anti-gay” isn’t struck down by its highest court of the land, even if it’s absolutely beyond its jurisdiction to do so, it’s nothing short of blasphemy for the world at large.
Those laws aimed to castigate gays are legislated by the Highest Court of Russia, Australia, even moved in the form of a bill to protect religious rights of the majority and “exclude gays,” by US Senator Mike Lee (R-Utah) supported by 11 co-sponsors, is conveniently overlooked. It doesn’t stop the US from being “disheartened” with the Supreme Court verdict while conveniently refusing to look within.
When the Indian Apex Court bench of Justices Singhvi and S J Mukhopadhaya reversed the Delhi High Court’s 2009 verdict and held that the 150-year-old Section 377 “does not suffer from the vice of unconstitutionality,” it only corrected a legal excess committed by the High Court in “legislating.”
That an amendment of the law is a legislative procedure laid down by the Constitution and courts are only empowered to determine and uphold the “legislative intent” that went behind the framing of the law, seems to be lost somewhere down the line.
“It is relevant to mention here that Section 377 of the Indian Penal Code does not criminalize a particular people or identity or orientation. It merely identifies certain acts, which if committed, would constitute an offense. Such prohibition regulates sexual conduct regardless of gender identity and orientation,” said Justice Singhvi.
The Indian Supreme Court is only empowered to examine the “intention” of the legislature.
In upholding the law, the Indian Supreme Court is only empowered to examine the “intention” of the legislature.
And, in that, the Supreme Court has laid that the onus of deleting the provision rests upon the legislature. Where the question of Section 377’s constitutionality is concerned, there was no ambiguity.
India is the world’s largest democracy and ruled by laws legislated by the people who are voted to power again by the people. So, to remove Section 377 or amend it suitably to exclude consenting adults in private is the job of the parliament.
The Supreme Court judgment read:
“Since 1950, 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.”
But the reasoning cuts no ice when it comes to chest-thumping reactions from Indians, particularly Indian expatriates.
So, there’s a surge in global support for local activists who have waged “a relentless war for same-sex relations to be legalized.” Dozens of Bollywood stars have come forward to criticize the decision to reinstate Section 377 of the Indian Penal Code which bans “sex against the order of nature” and is widely interpreted to mean gay sex.
Among those “hurt” are Aamir Khan and John Abraham who described the judgment as “very intolerant and violative of basic human rights.” Freida Pinto of Slumdog Millionaire tweeted that she was “absolutely appalled by such narrow-mindedness,” and more. That not a single celebrity chose to flay the petitioners who belong to hard-nosed religious groups and their associated ideology, reeks of hypocrisy.
So, for the record, here goes a list of the petitioners who moved the Supreme Court to reinstate Section 377. Delhi Commission for Protection Child Rights, Suresh Kumar Koushal, an astrologer, Krantikari Manuvadi Morcha, Trust Gods Ministry, Late VHP leader BP Singhal; Apostolic Churches Alliance, Utkal Christian Foundation, All India Muslim Personal Board, SK Tizarawala, a representative of Baba Ramdev and Petitioner in person from Joint Action Council Purshottaman Mulloli and petitioner in person Ram Murti.
Loose use of terms such as “Colonial Era Law,” “Archaic Law” is in poor taste.
The loose use of terms such as “colonial-era law” to run down a nation’s judicial processes is in poor taste and attempts to trivialize the processes of the world’s largest democracy. Why, wasn’t the Bill of Rights created back in 1789 and ratified in 1791? And, isn’t it way older than 1861 when Section 377 of the Indian Penal Code was created?
So, by that logic, the Bill of Rights is more archaic than the Indian Penal Code. Name-calling is the prerogative of the ill-informed and motivated. There is absolutely no exercise of restraint or a bonafide attempt to empathize with the subject in question or those who it affects.
Interestingly, despite all the brouhaha raked by celebrities and socialites in India and beyond, not a single one has urged for a change through legislative means. In the failure to understand India’s constitutional functioning, most indulge in the easiest of follies… bashing the state and for any reason whatsoever.
If it isn’t the inept handling of a natural disaster like the Uttarakhand disaster, it’s the “regressive” stand adopted by the highest court of the land. It only seems fashionable and in that narrow sense defeats the very purpose of the gay cause.
All political parties are aware that anyone takes an anti-Section 377 stand may risk losing the support of its “regressive” voter base and hence never ever risk such a move. So, it pays to stay quiet and provide the regulatory lip service as and when asked.
Also, who will risk taking on such an issue barely months before the battle of the millennium during the next general elections? The deafening silence of almost all political parties in the entire Section 377 imbroglio underlines the fact that while most of the closet gays have come out in the open vis-à-vis their leanings following global support and the Delhi High Court ruling of 2009, a sea of closet gay-haters continues to thrive. While they provide the loudest support in social media and all over, their stand remains suspect.
Political parties had been waiting for the Supreme Court to bell the cat while they publicly flay the legal move and relinquish all responsibility for the act.
US bill to protect traditional marriage from gay-friendly federal government.
Recently in the United States, Senator Mike Lee and eleven original cosponsors introduced legislation to protect religious organizations from discrimination by the federal government for supporting traditional marriage. The Marriage and Religious Freedom Act bars the government from denying any person or group tax-exempt status for exercising their religious conscience rights.
“This bill protects the rights of individuals and organizations from religious discrimination by the federal government,” said Senator Lee. “Those who believe in the traditional definition of marriage deserve respect and tolerance. It is critical that we clarify the law to ensure that their fundamental civil liberties are not at risk.” It will guarantee that churches will not be pressurized into recognizing Gay marriages.
Australia High Court shoots down a pro-gay law, insists on legislation
On December 12, Australia’s High Court struck down gay marriage in the nation’s capital, ruling that the Parliament must decide on same-sex unions. In a unanimous judgment overturning the Australian Capital Territory’s new same-sex marriage law, the High Court ruled that only the Parliament and not state and territory authorities had the power to decide who could wed.
Russia’s anti-gay legislation helps protect minors
Russia’s highest court recently ruled that a controversial law banning “gay propaganda” was not in breach of the Constitution.
The Constitutional Court dismissed a complaint from leading gay rights campaigner Nikolai Alexeyev that St. Petersburg city council had acted unconstitutionally by passing legislation to ban the promotion of homosexuality among minors.
The law, which came into effect in March 2012, allows for fines of up to 5,000 rubles ($150) for individuals and up to 500,000 rubles ($15,000) for organizations. A similar federal law banning the promotion of “non-traditional sexual relationships” among minors took effect in June this year.
But, until sense prevails, will the world’s intellectually-sensitized proponents of “inclusion” get “appalled” by a “regressive” United States, Russia and Australia too? Chances are… they won’t! It’s just not as fashionable as bashing India.
The Indian Supreme Court verdict is seen as “protecting children.”
While the Supreme Court bashing continues, it may make sense to attempt to figure the logic that spurred the petitioners into challenging the Delhi High Court decision to decriminalize the offense.
A reputed Delhi Commission for Protection Child Rights (DCPCR) also joined in the petition against the repeal of Section 377 in the Indian Supreme Court and fought the section shoulder to shoulder with conservative religious groups.
Only two years before the High Court order was passed in 2009, a national study on child sex abuse conducted by the ministry of women and child development had revealed that 50 percent of the child victims were male. Section 377 was the only protection that male children had against sexual assault.
“In the last 150 years, there have been only 200 cases were this section has been effectively applied. All those cases applied to sodomy and in more than 90 percent of the cases, the victims were minors. So the application of Section 377 was to protect victims,” offered the-then chairperson of the Commission Abod Kanth.
The High Court in legalizing consensual sex between consenting adults had failed to address the fall-out of the impact of such relationships on children. Children of LGBT parents were more prone to social stigmatization. In decriminalizing homosexuality, the High Court did not devise any protection as far as adoption laws were concerned – whether gay and lesbian couples can adopt children, whether they have right to adopt.
The Protection of Children From Sexual Offences Act addresses the issue of sexual assault against children does not address concerns raised by DCPCR relating to adoption, parenting, and stigma to LGBT kids. These issues need to be discussed, deliberated and legislated through the process of law. Simply retaining Section 377 or repealing it does not affect gay rights as extensively as widely, and wrongly, understood. It will need a full-fledged legislative endeavor.
The Apex Court has put the ball in the Parliament’s court and thrown open the option of legislating extensively on the issue and amending the section appropriately; and, in that, provided the perfect platform for change.