A Miscarriage Of Inclusivity

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Since the shameful verdict of the Supreme Court (SC) on 11.12.13, upholding the constitutional validity of Section 377, the media has gone into a tizzy, and rightly so. If not rights, the least we can provide every citizen is a voice. This is my humble attempt to that end. I would like to make it very clear that this rant is not directed against the Honourable SC or the learned judges of the SC, but solely against the judgment pronounced by the two judge bench on Koushal and others v. Naz Foundation.

Simply put, it violates our fundamental rights and goes against the constitution’s promise of equality to every citizen by relegating certain sections of society into secondary citizen status. To this end, it is unconstitutional. In this post, I have exhaustively analyzed the issue from the three perspectives of (I) law/constitutionality, (II) religion and lastly, from my (III) personal viewpoint.

I.   LAW/CONSTITUTIONAL PERSPECTIVE

If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of ‘inclusiveness’. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations… Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination. This was the ‘spirit behind the Resolution’ of which Nehru spoke so passionately.”

Naz Foundation v NCT, Delhi High Court, July 2009

India prides itself on its inclusivity and it was one of the founding principles of our incredibly diverse nation. This judgement goes against this very spirit of our constitution by denying rights in the Preamble and Bill of Rights, where every citizen is guaranteed equality, justice and non-discrimination, among other things.

In fact, a good look at the Bill of Rights reveals the hypocrisy. Articles 14, 15 and 21 prohibit discriminatory legislation against homosexuals based on sexual orientation. The three articles are as follows:

“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” (Article 14)

The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” (Article 15)

“No person shall be deprived of his life or personal liberty except according to procedure established by law.” (Article 21)

Article 14 allows itself to be overlooked only ‘if there is an intelligible differentia between the classes, a rational nexus with the objective of the legislation, and depends on the constitutional validity of the objective itself.’ The arguments (in 2009) by Govt. of Delhi in favour of Section 377 held public health and public morality as the reasons to uphold it. The Delhi High Court (HC) had correctly concluded that public health would, in fact, be negatively affected by this criminalization as it would push both patients suffering from and doctors tending to AIDS, underground for fear of harassment or even arrest. Between before the HC’s ruling and after, patients coming for AIDS tests, check-ups, counselling and treatment had gone up tenfold. This progress is in real danger of being lost again due to reinforcement of Section 377. AIDS spreads through heterosexual intercourse too. Is banning it the solution? The Centre had earlier informed the apex court that there are an estimated 25 lakh gay people and about seven per cent (1.75 lakh) of them are HIV-infected. In its affidavit, the Union Health Ministry had said it was planning to bring four lakh high-risk ‘men who have sex with men’ (MSM) under its AIDS control programme and it has already covered around two lakh of them. Pushing this community underground will have a very adverse effect on their accessibility to healthcare and in general, AIDS control in India.

The HC had rightly placed the importance of constitutional morality over public morality. In referring the case to the parliament, the SC has handed it over to an elected body that is even more likely to ditch constitutional morality for public morality. It has left the fate of a minority in the hands of the most majoritarian institution of the country.

On Article 15, the HC had included ‘sexual orientation’ within the term ‘sex’ and hence freed it from discrimination. On Article 21, the right to privacy was seen to be a personal liberty, overlooked only by showing a compelling state interest. Here, none could be shown by the state. The HC judgement was perfectly in sync with the constitution.

The SC, however, has decided to rubbish that entire notion and has provided very little in terms of reasons for doing so. Paras 42 and 43 of the SC judgement are as follows and constitute the justification for overlooking the aforementioned articles (14, 15 and 21) in the Bill of Rights:

“Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification. What Section 377 does is merely to define the particular offence and prescribe punishment for the same which can be awarded if in the trial conducted in accordance with the provisions of the Code of Criminal Procedure and other statutes of the same family the person is found guilty. Therefore, the High Court was not right in declaring Section 377 IPC ultra vires Articles 14 and 15 of the Constitution

While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.”

This highly significant portion of the ruling, unfortunately, can be ripped apart from multiple angles:

  1. ‘Order of nature’? Who is to define that and how?  Is it what the majority engages in? Since the court gives no answer to this, we can only presume so. Hence, since right handed people are in a majority, being left handed should be declared illegal? What the hell?! What’s more, according to this, not only is gay sex illegal, but so is anal and oral sex for heterosexuals as well. You are liable to be arrested and imprisoned for ten years to life and fined. Beware!
    Minority communities of other animals in nature are also known to display perfectly natural homosexual behaviour. This makes the SC’s contention all the more absurd. They obviously chose to ignore this fact of ‘nature’.
  2. Our public just got divided into two classes based on those who adhere to the arbitrarily defined ‘order of nature’ and those that defy it. Hence the ‘intelligible differentia between the perceived classes’ required to overlook Article 14 is extremely hazy at best. Where the ‘rational nexus and constitutional validity of the objective’ lie, is anybody’s guess since it has not been reasoned out in the judgement.
  3. The constitution, I thought stood up for every single citizen, down to the last, solitary one. That less than 200 persons were prosecuted in over 150 years is irrelevant and hardly a justification for there having been no discrimination. As Gautam Bhatia put it into perspective beautifully in his report, and I quote him, “Suppose the State randomly catches hold of 200 people and shoots them dead. This, according to the learned Judge, would not be an Article 21 violation because, well, it’s just 200 people. Our Constitution does value human life—but only when it’s more than 200 people. Remember that.” Enough said.
    Moreover, these 200 cases are only the ones where judgement has been delivered. There are countless other unreported cases of moral policing, blackmail and other such misuse of Section 377 that the community has to endure silently for fear of prosecution.
  4. The court refuses to acknowledge the interpretation of the term ‘sex’ in Article 15 by the HC and chooses to discriminate citizens on the basis of ‘sexual orientation’, being considered as different from ‘sex’. I would like to point out here that religion, race, caste, sex and place of birth are all things a person is born into, without any control over it. She may change her religion afterwards but that’s about all. The rationale behind Article 15 is to prevent discrimination of people on the basis of their inborn characteristics. How is sexual orientation not inborn? It has been proven through numerous studies that in homosexuals, attraction towards the same sex is as in-born as an attraction towards the opposite sex in heterosexuals. Hence, this very important rationale for equality is being defied.
  5. Article 21 grants us the right to privacy as a part of ‘personal liberty’. A ‘compelling state interest’ is required for any interference on that. In the judgement, there is absolutely no justification in this regard. Bizarre and arbitrary, to say the least. It’s the FUNDAMENTAL RIGHTS (falls under rights to life in point no. 2) for god’s sake!!

Apart from deciding the fate of present cases, courts also play another important role. That of setting legal precedents, which can be cited and applied in later cases. The irresponsibility in this verdict will have an impact on future judgements as well, unless it is remedied of course.

Another view that is floating around is that the SC did the right thing by showing judicial restraint and following the principles of division of powers between the legislature and judiciary. In my opinion, that is a hoax. It is the judiciary’s duty to step in whenever a law is found to be unconstitutional and declare it void. It says so in Article 13(2) of the constitution:

“The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.”

So basically, if the parliament passes any unconstitutional law, it is the duty of the judiciary to strike it down and not to send the matter back to the parliament. Section 377 unconstitutional how? It violates the spirit of the constitution, specifically Articles 14, 15 and 21 as explained in detail above. Hence, the Delhi HC was spot on in its assessment and reading down of the Section. Moreover, if the court gladly engages in activist jurisprudence on fiscal policies, tax amendments, red beacons and whatnot, deference to the legislature when human dignity is concerned is definitely a shameful act.

The way the HC ‘read down’ (reading down a law means to read it thoroughly and exhaustively and give clearer meaning to it, removing ambiguity) Section 377, it’s ambit remained confined to non-consensual homosexual sex. This device of reading down has been done away by the SC, leading to ambiguities galore. As a corollary, cops can now book gay persons for consensual sex or even straight people for anal or oral sex and they are liable for severe punishment extending to life imprisonment.

This judgement also flies in the face of international law treaties like the UN’s International Covenant on Civil and Political Rights (ICCPR), of which India has been a signatory since 1979. Treaties such as this and The Universal Declaration of Human Rights are respected worldwide and explicitly protect the rights of sexual minorities. Through this decision, India joins the company of countries such as Somalia, South Sudan, Yemen and Saudi Arabia.

II.   RELIGIOUS PERSPECTIVE

We have the so called, self-appointed custodians of ‘Hindu culture’ supporting this inhuman judgement. People like Baba Ramdev and organisations like BJP couldn’t be further from reality.

It is ironic, really. Historically, Indian culture has been largely tolerant of homosexual behaviour. There is proof of the same in homosexual sculptures in Khajuraho and Konark temples and ample details provided in the Kamasutra. It was the British that enforced their Victorian idea of morality upon us, (that even led to the harassment of the great Alan Turing in Britain and eventually, his suicide in 1954) an unwilling, second grade subject population. Today, they have legalized homosexuality and are on the cusp of legalizing gay marriage, set to begin in March 2014. In 2009, they even issued a posthumous pardon and apology to Alan Turing for the way the WWII Enigma code-breaker was treated.

Where has all this left us? Orphaned of our originally tolerant religious stance, we now follow the Victorian lunacy of our colonial rulers, who themselves have snapped out of it. We are being told by ‘religious leaders’ that we must continue with the anti-religious colonial legacy in the name of preserving our ancient culture (which was originally tolerant). Basically, our ‘religious leaders’ are upholding Victorian lunacies with full fervour in the name of preserving Indian culture. I hope the irony is not lost on you.

“Homosexuality has never been considered a crime in Hindu culture. In fact, Lord Ayyappa was born of Hari-Hara (Vishnu & Shiva). Homosexuality-not a crime in any Smriti. Everyone has male & female elements. According to their dominance, tendencies show up & may change. Nobody should face discrimination because of their sexual preferences. To be branded a criminal for this is absurd.”

-Sri Sri Ravi Shankar

“If a homosexual person is of good will and is in search of God, I am no one to judge.”

-Pope Francis

Our culture and traditions have been twisted beyond recognition and most ‘religious leaders’ today have no depth of knowledge in the very field they claim to be leaders of. When the Delhi HC ruled against the government and it’s stand on Section 377, the government didn’t even appeal against the decision. It means, the government accepted it. Who got butthurt and appealed against it in the SC? No surprises here, below is the list:

1. All India Muslim Personal Law Board
2. Utkal Christian Council
3. Apostolic Churches Alliance
4. Tamil Nadu Muslim Munn Kazhgam
5. SD Pritinidhi Sabha
6. Astrologer Suresh Kumar Kaushal
7. Yoga guru Ramdev’s disciple S K Tijarawala

An over representation by religious organisations who have no idea that they are going against their own ancient culture of tolerance and are standing up for discarded Victorian morals, perpetrated by the Raj. Myopic, blind and downright stupid to say the least. They represent a contemporary culture of intolerance widely prevalent in our country’s religious scene which has hijacked impressionable minds, poisoning them with ignorant misinterpretations.

III.   PERSONAL PERSPECTIVE

My personal view is that, what a person does in her own privacy is none of the state’s business. I’m quite liberal in giving people the freedom they deserve. As long it does not hurt anybody and is consensual, I’m cool with it.

If he/she is gay, what’s your problem? Think about the answer to that question with a clear mind and try coming up with an honest answer. It’ll surely be a baseless, self-created ‘problem’ in your own mind probably with the help of some external brain washing. Problems like ‘what would society say?’ and ‘religious issues’ are just that. If you’re homophobic on the other hand, I’m sorry to break it to you, but you have an actual mental condition and need medical help.

The bigots ask, “Homosexuality today, bestiality tomorrow? Incest tomorrow?” Firstly, you got to have a really sick mind to come up with such a progression of acts. They are beyond comparison! Nevertheless, here are my views on the topics. Let me make it amply clear that I’m not comparing them with homosexuality in any way. Bestiality is completely out of the question as there is no way of getting the animal’s consent, so it violates animal rights. So no, no bestiality ever. As for incest -no matter how disgusting I find it personally- I feel that as long as all the parties are above 18 and it is consensual, it is none of our business. It is our duty to educate them about the risks, like conceiving deformed babies, etc. If they still decide to proceed in spite of that knowledge and say, use contraceptives, we are nobody to stop them. If there is any threat, blackmail, coercion or paedophilia of any sort involved, the law needs to step in. I understand that such policy is extremely hard to implement, but that doesn’t mean it can’t or shouldn’t be. One human does not have the right to judge another, based on what he ‘thinks’ is right or wrong. In what way can we claim moral superiority over them? The fact that it is wrong needs to be proved beyond any reasonable doubt. Only then should it become law.

Homosexuality is as natural as heterosexuality and it should not be viewed as a perversion of some sort. If you are naturally attracted to the opposite sex, they are naturally attracted to the same sex and vice versa. As simple as that. It just cannot be helped and any attempts by others to suppress it is a form of torture. It’s akin to forcing a straight person into homosexuality. So, parents who force their homosexual children into heterosexuality are doing the most cruel thing to their own children.

To those who claim that homosexuality is against the concept of evolution, here’s something to think about. Due to non-stop heterosexuality-caused reproduction, our population grows and grows. For how long can our environs sustain it? Beyond a certain point, our population should not grow so fast in order to avoid the eventual over-population. What if homosexual behaviour is a kind of evolutionary tactic for natural population control? Fits in with the theory of evolution then, doesn’t it?

To my homosexual friends, both out of the closet and in, I would like to ask you to not lose heart. Even though it is going to take some time, this judgement is eventually going to find its rightful place in the dustbin of bad judgements. After gaining initial brownie points, the Congress has said it won’t introduce an ordinance ‘now’ due to political reasons. Truth be told, no political party really gives a shit, it’s not there on any of their manifestoes, never was and chances are quite strong that it never will be. That only leaves the option of appealing the decision in a court, which is comparatively time consuming but has a very realistic chance of success as I have faith that the SC will entrust a larger bench and won’t repeat the same injustice next time. Once bitten, twice shy In the meantime, don’t lose heart and do strive for happiness, in whatever way. Lead a normal life because you’re as normal as normal can be. Don’t let stigma, violence and discrimination break you. Don’t succumb to pressure from your parents to marry. I am aware that this is easier said than done. I want to give you courage and confidence that our society and law will evolve for sure and in quick time. You have a lot of support from a huge section of liberal people who belong to the 21st century in mind and spirit and we stand with you against this illogical tyranny. We are one and we shall overcome.

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