IN THE SHADOWS OF LAW

There are two articles in THE HINDU today (December 16, 2013) that attract one's attention in the backdrop of Supreme Court's recent judgment on Section 377 IPC. In deference to Parliament, the Supreme Court bench felt that the legislature should decide the fate of Section 377 IPC and also those of thousands of LGBTs. The first piece I am talking about appears on Page 8 [editorial page] where the legalities of the issues is interestingly discussed. It is written by Arghya Senguta, Founder and Research Director of the Vidhi Center of Legal Policy, New Delhi. At the outset, Article 377 criminalizes "carnal intercourse against the order of nature". What is the parameter one has to decide whether what one person does is in the order of nature or against the order of nature? This is at best discriminatory and at worst, unjustifiable. According Article 14 of the Constitution, no discrimination among the subjects of India is allowed. Then, whether this Section violates the right of people to live with dignity. Certainly so. Article 21 of the Constitution grants the right to all people to live with dignity. Section 377 is, in this perspective, in violation of Article 21. Article 21 is also very vocal in protecting the privacy of people. Section 377 of IPC violates this too. Like many others, Arghya Sengupta too feels that the Supreme Court could have decided this issue within its powers and jurisdiction. Two issues emerge with this decision of the Supreme Court. "The Court presumes constitutionality of the statute and suggesting that reform of the provision is the prerogative of Parliament." Generally, the courts defer to the legislature only those issues "concerning government policy or high technical matters where the Court recognizes its own limitations."

Sengupta rightly feels that the Court has exercised a political choice. He concludes: "If it is legitimate for the Court to make such a choice, it is even more legitimate for citizens to ask: who will judge our judges? It is high time the Supreme Court reaps what it sows."

The second article that attracts attention is on Page 9, rather a Human Story by Siddharth Dube, Senior Fellow at the World Policy Institute and who has authored eminent books on poverty and public health. When he returned to India in 1986 despite suggestions from his family against it on the grounds that India was not a safe haven for gays, he was impelled to come back as he was "aching to work on the issues of poverty and social justice" about which he felt passionately. But, what turned out in the succeeding days was far from encouraging. He was summoned to the nearby police station with the man he was in relationship with, and they were warned severely by the police officer. The police officer with derisive outlook and tone said to him, "Mr.Dube, I know all about you. I have enough complaints about you. You are a homo! You have naked men dancing at your house, exposing themselves. Go back to America! You think you can live here but you're wrong. If you want to live here, you will live as an Indian, not like an American!". Finally, he could free himself from the clutches of police only with the interference of some family heavyweights.

Mr.Dube understood India better, thanks to that hellish night at the police station. He went back to America only to return for short periods to do field researches. Two decades after the incident, in 2006, he decided to return to India for good, as the social atmosphere had surprisingly changed. The stigmatization attached with fringe groups like LGBT was not anymore evident in the societal fabrication and these minorities need not live covertly. The society is much more open now and eminent citizens like Amartya Sen, Swami Agnivesh, Captain Lakshmi, Soli Sorabjee have openly supported the right of LGBT in Open Letters.

Mr.Dube is not at all perturbed by the recent Supreme Court's ruling. He is confident that wisdom will prevail at last. He reminds us the ruling of Delhi High Court on July 2, 2009 wherein Justice Shah and Muralidhar stated: "Section 377 IPC, insofar it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The criminalization of homosexuality condemns in perpetuity a sizable section of society and forces them to live their lives in the shadow of harassment, exploitation, humiliation, cruel and degrading treatment at the hands of the law enforcement machinery.. This vast majority .. is denied moral full citizenship."

In spite of the recent ruling by the Supreme Court Bench and its decision to defer the issue to Parliament, the rays of hope are still very much brilliant. Hopefully, Parliament will take note of the changing dynamics of the world societies. India should march on with all the people elsewhere in matters that concern the right of the individual and his legitimate choices in his personal life. Mr.Dube says, "It [recent ruling of the Supreme Court] goes against the tide of recent history. It goes against every measure of justice. It must be reversed. It will be reversed. This is India after all, not Putin's Russia or the Ayatollah's Iran."

Godspeed Mr.Dube!