If you are gay, you are a criminal!

Should untrained people like me question what the Supreme Court decrees in its infinite wisdom? The answer should normally be “no”, but what if the judges plainly ignore the reality around them or if they say something that flies in the face of the collective scientific wisdom on the subject?

A relic of the British Raj, the Indian Criminal Procedure Code was born in 1861. Section 377 of the Code provides that sexual acts “against the order of nature” are punishable with jail terms ranging from 10 years to life. If this section is enforced seriously, two and a half million gays (the number is given by the Union Health Ministry) in India should be in jail. Even if it is not, the provision would be a goldmine for rogue policemen to harass and detain homosexuals and extort money, and god-knows-what-else from them.

In a landmark judgment in 2009, Delhi High Court struck down this Section partially because it went against the fundamental rights of individuals. The High Court said that a consensual sexual act between homosexual adults in private was no longer an offence. The judgment “de-criminalised” homosexuals in India.

That order was overturned by the Supreme Court yesterday. In what appears to be an illustration of laughable double-speak the court conveyed: “The section does not automatically make a homosexual a criminal but sexual relations between homosexuals – and “unnatural” intercourse between persons of all orientations – do.” [The Telegraph, 12 December]. It would be worthwhile to check on what basis this stupendous decision was arrived at. 

 

The Supreme Court felt that since “only a minuscule 200-odd persons have been booked for the offence under Section 377 in the last 150 years”, by no means could it be construed as misuse of the provision by law-enforcing authorities. The counter-argument is: police themselves are the offenders in these cases and they are hardly expected to record such crimes. So this statistic is meaningless. The honourable Supreme Court chose to ignore this crucial aspect.

Secondly, that homosexuality is as “natural” as heterosexuality is firmly established today; there is absolutely no disagreement about it among the scientific community. But sadly, there is no indication that the Court considered modern scientific opinion on sexual predilections. They did not go into the moral issues; they did not go for a modern, enlightened interpretation of homosexuality, which was once upon a time considered “against the order of nature”. That part they have left to the legislature. The Court suggested that law makers could amend the relevant provision of the law if they felt. But the trillion dollar question is: will our MPs feel the necessity?

The worthies who appealed to the Supreme Court to overturn the Delhi High Court verdict included the late lamented BP Singhal of BJP, the All India Muslim Personal Law Board, Apostolic Churches Alliance, etc. Now, these self-appointed guardians of religious communities are extremely strong and no political party displeases them for the fear of losing votes. Political parties will rather consign gays to a life of perpetual fear and intimidation. The casual approach of the political class was clearly betrayed by the Union Law minister when he said, “Well, if Parliament runs, we will take it up.” [The Statesman, 11-12-13] How sensible of him!

To sum up, the gay people of this country have been literally thrown to the wolves. And this is not the only issue where we have been walking backward. The Women’s Reservation Bill has been hanging fire for decades. In the recent past, our MPs successfully scuttled the Lokpal Bill. The people who control the destiny of over one billion Indians seem to be bent upon destroying the country. We don’t know how things will turn for the better, but one thing is certain. If we don’t protest, nothing will ever change.

 

Kolkata, 12 December 2013