Happiness in Togetherness:

Dec 17/2013: Last week, the Supreme Court, by reversing a Delhi High Court order and making homosexuality illegal and punishable by law in this country has made many people sit up and think.

This is being considered a serious threat to the LGTB (Lesbian Gay Bi & Transvestites) community by activists working for this group's betterment. A relevant question that is being asked is whether we change with the times, or stick to a British era rule book that also finds favour with the fundamentalist viewpoints today.

Same sex marriages and liaisons, recognized and legitimized in a little over 13 countries worldwide, is definitely here to stay. It may be unacceptable to only those whose wishful thinking makes them consider that their colored vision of morality is the ultimate truth. It is not relevant to quote scriptures to prove to anyone that this is a human tendency that has lasted over the ages. Miss Mia Farrow, Hollywood actor, announcing that she and her 'wife' may not feel welcomed in India after this judgment shows on one hand the acceptability and respect that this out-of-the-closet thought has gained over a period of time globally and on the other that such judicial pronouncements have an internationally cascading effect that probably Indians are yet to realize.

Forget playing to international galleries. Some may say our social customs and behavior do not require acceptance by any outsider which is definitely a proper argument that can not be brushed aside. However, history teaches us that any community that is known to be prone to certain particular life style ailments does better if it handles such issues out in the open. In this case, the LGBT community does have serious issues with health problems, just like anyone else. Sexually transmitted diseases being one such major source of concern. Many NGOs concentrating their drives against HIV/AIDS have admittedly focused on this community along with intravenous drug users as target groups most susceptible to that fatal disease. The fundamentalist mindset may easily say that it is better to let those people die in their personally created hell holes, that this is Nature's punishment against those who go opposing its obvious natural path. Just as the LGBT seem like 'freaks' to that mindset, similarly the archaic beliefs of that mindset are quite obviously freaky for others who truly keep faith in the inpidual's freedom of choice.

A Sankaracharya or a Moslem cleric (Seers?!) appreciating the SC verdict is like saying a rat loves the smell and humidity of the gutters. That is the case of Sec 377 of IPC as of now.

A law framed some 153 years ago by the British rulers, it says same-sex relationship is an “unnatural offense” and punishable by a 10-year jail term. In this long period, the world has moved on to greater heights of personal freedom. Realizing this truth, the Delhi High Court had struck down much of Section 377 that dealt with the issue of homosexuality, and stated that, to the extent the section criminalized consensual non-vaginal sexual acts between adults, it violated an inpidual’s fundamental right to equality before the law and liberty.

The Supreme Court, in its judgment on an appeal, turned the tables, and ordered that criminalizing gay sex “does not suffer from the vice of unconstitutionality.” It also stated that the legislature is free to consider a deletion or an amendment to the existing section if it wanted to decriminalize gay sex. This respect shown by the SC towards Parliament is very commendable. All of us would wish that to keep democracy intact, the Apex Court would always ask the legislature to set things right and not go overboard in dictating on how to run the affairs of the nation by passing judgments way beyond its capacity. 

Homosexual acts on the part of inpiduals must come in the realm of consensual sex. In this respect, what should be of concern to the legal realm is extremely limited, in the sense that the act involving two adults who are indulging in it must have the consensus of both and there should be no conflict of interest. This implies that such cohabitation is done without harm to either side, and they are adult enough to take care of themselves. It essentially is a private affair and it is best for the system of governance in a free country to be kept away from meddling in such private inpiduals' lives, likes and preferences.

Unfortunately India as a nation has many other issues that are ignored and need to be attended to with a sense of urgency. Harping on issues such as this would only mean a waste of time not only of the police but also the judiciary. Our Courts these days not only show inordinate delay in passing judgments that are way beyond their purview but it seems as if they have started to think and work the way activists do. As common citizens we realize that these types of judgments are creating problems that create hurdles both for governance and, in the foreseeable future, for the Courts too.

The judgment on Article 377 throws light on some very important aspects of our judiciary – that it has not yet succeeded to appreciate the fine pide that defines personal or inpidual preferences which have to be dealt with in such a manner that there is no collision with existing social mores. Therefore, in this case, the best course open for the Supreme Court was to have upheld what the Delhi High Court had said earlier about decriminalizing same sex acts. The very fact that it took nearly 21 months to pass such a judgment, after the High Court had already given its ruling, shows that although the judges applied their minds, their hearts do not seem to have got involved in this judgment.