Friday, July 17, 2009

What the Legalization of Homosexuality Means for India

I do not know how many people have been following the recent Delhi High Court decision in the section 377 case legalizing homosexuality. The Hindu wrote at least two editorials supporting a decision in the petitioners' favor. That wish has now come true. Other newspapers and TV channels are also full of stories hailing the decision and now everyone is fondly praying for the Supreme Court to uphold it.

Without getting into all the details, I will provide the gist of the issue here and why people need to take this more seriously than they have. Many people ask me the same question (or something to this effect): "What is the big deal about homosexuality? Why does it matter to us whether someone wants to be with a man and practice sodomy? Let them do what they want." Of course, if someone wants to practice anal sex in the privacy of their home, there is no good reason why others should be bothered about it. This is quite understandable and I have no problem with this view either.

The problem, most people do not seem to understand (those who do understand this either stand to benefit from it or otherwise do not open their mouths for fear of being branded anti-gay) and the media refuses to talk about, has nothing to do with homosexuals or sodomy and has little to do with the actual outcome of this decision which is all they know and care about but the process by which the court reached that verdict. That is the most disturbing aspect of it and if the Supreme Court approves it, it will become binding precedent enshrined in law and will come to haunt this country for a long time to come (I am sure everyone reading this knows that everyday is not a new day in court and new cases are decided based on principles laid down in earlier ones even if those were determined in a different situation and under different circumstances).

The petitioners were represented by extremely smart lawyers who followed the tried and tested strategies used in other countries. The central theme of their argument which the court accepted eventually was that this is something other countries have done, international organizations have supported and makes for good policy everywhere else. Therefore, it ought to be legal in India as well. Read the last sentence carefully again. What it means is that if foreign countries have laws and foreign courts have supported the idea for reasons of their own, it could be automatically incorporated into Indian law if the judges think it is a good idea to do so.

The biggest and gravest question is what this means for the future of democracy in India. What is the point of people voting or governments drafting laws when their laws are not worth all that much at all? If a judge does not like it, all he/she has to do is throw it out, say that he likes the British, Brazilian or Ugandan law better than the Indian one and that is what he/she is going to put in place of it. This may sound like an exaggeration but that is exactly what the court has done in this case and once this decision is affirmed by the Supreme Court, it will certainly be repeated in many more cases in the months and years to come. After all, there are numerous lawyers filing various kinds of public interest petitions all the time. Once the Supreme Court rules in this case, all that those going to court with some prayer have to do is show the names of some other countries which have a similar system, policy or scheme as the one they are suggesting and the names of a few foreign organizations that support the thought and lo and behold, if the judge likes it as well, it can become law the next day! Never mind state legislatures, parliament, law ministry, political parties' views or public debate. Neither the public nor public debate even figure anywhere in this scheme of lawmaking which will be a matter purely left to courts and lawyers debating foreign laws and agendas downloaded off the internet.

Before Indian legislatures were set up during the British Raj, British judges were deputed to India with the mandate to implement British laws with flexibility allowed for Indian conditions. More than sixty years after independence, we appear to be returning to the same colonial system once again except this time, it will be Indian judges taking their place and it will not be British laws in particular but that of any foreign country which suits their fancy. Judges will no doubt come one step short of kings only without the title while democracy will be left only as little more than an irritant.The tragedy is that in their anxiety to promote the cause of the gay agenda and movement, the media has completely ignored this far reaching, most unfortunate and dangerous outcome of this process.

16 comments:

Anonymous said...

Chindu, just who are you trying to kid with this ridiculous post? You are weaving fanciful tales and outrageous extrapolations of what might happen. It's all in your head. Why don't you just come out and say it? You're a homophobe like 99% of Indian males.

If you are not, then cough up some hard facts and precendents. If your weirdo hypothesis is to be believed, then in the future, some judge may even sign a law to adopt Sharia Law in our country because many other countries had it too. DUH!!!!

You are just taking the coward's way out by hiding your bigotry behind some rabid fear-mongering.

Granting freedom and equal rights to homosexual citizens is a good and vital step towards perserving democracy and liberty.

Oh btw, feel free to delete my comment and ignore the truth staring in your face.

Pilid said...

Anon,

Thanks for your comment. Please read the post more carefully. The question here is not whether gays ought to be granted freedom and rights or not but the means for doing so. I also said policies that judges like personally which usually means a preference for European, American, South African and probably Brazilian and a few others.

Xinhua Ram said...

Anonymous dude, if the post is beyond your grasp, ask someone to translate it for you.

When you claim that something is "good and vital", know that you need to substantiate it in a rational way and not by mouthing a few fashionable insults.

Moreover, brave boy, something you don't fully understand doesn't automatically become "taking the cowards way out".

Anonymous said...

Pilid,

I think that I did read your post carefully. And my comment is exactly meant for what you have repeated above. Based on this ridiculous hypothesis, what’s to say in the future, a judge won’t personally “like” to implement Sharia by preferring to model after an Islamic country? This judge might one of the countless Muslim judges who will be appointed purely based on his religion.

Today’s judge might have a taste for European nations, but in the future why not other countries too? This is as much a liberty of extrapolation I have taken as have you with your ridiculous theory about the “means” of granting gays their rights. What’s the proof that the only consideration for repealing article 377 was because this judge took a personal liking to Europe and America?

But let me for a moment indulge this ridiculous theory. Were the gays granted rights on a whim in these foreign nations? Didn’t they go through the excruciating process of “state legislatures, parliament, law ministry, political parties' views or public debate?” This is called Due Process. These countries have been through all this before it became a law.

Are you really suggesting that we re-invent the wheel?

Are you aware that when our constitution was framed we incorporated most of what was declared in the Bill of Rights in the US of A? This is mentioned in copious detail in Arun Shourie’s book : Worshipping False Gods. What’s more, the framers of the constitution were very particular that they not blindly adopt all laws relating to freedom and liberty which were present during the days of segregation of the blacks! Which means that they were wise enough to pick only the GOOD and discard the bad.

And this is exactly what’s happening now. Your hypothesis needs a more concrete basis if it is to gain credibility. Or else, it is just needless fear-mongering according to me.

Btw, what actually happened is that Hindu society was quite tolerant towards all kinds of people until the Missionaries came along and imposed their “moral” values on us. This made us even more prudish than a Victorian nun. And now that the western countries have broken free of the catholic sense of morality, it’s us who are still clinging onto these ideas as if it were our own.

Anonymous said...

Xinhu Ram,

Eh??? Granting homosexual people rights as being 'vital' or good for democracy needs a rational explanation?

Did you want me to write you a thesis on "why" freedom and liberty and equality should be given to every human being? Regardless of his/her sexual proclivity?

Pathetic.

Karthik said...

Anon Dude
If you read the post carefully the author has clearly mentioned that he is not against Gay people. He is just against the process by which the judges came to this conclusion. If you can't undersand from this post too bad.You are making an assumption that the author without any evidence and calling the author a stupid homophobe. In reality you are an idiot who can't understand a well reasoned post.

Anonymous said...

Karthik, you're the idiot. My comment WAS mainly regarding the process. The "means" which were used to arrive at this conclusion by the judges which were questioned by the author of this post.

If you had not behaved like the cronie you are and read my comment fully, you would know that I questioned the hypothesis presented regarding the "process".

Go back and read my second comment (July 18, 2009 2:01 AM) before jumping to conclusions.

Dirt Digger said...

Anon,
Couple of things. First off, I agree that most of the folks against 377 are douchebags with personal or political agendas to grind.
Second we try to maintain this blog without profanities as much as possible. Please don't abuse anyone who doesn't agree with your POV.
Thirdly, your 'Sharia' example has a realistic event backing it. CJI Balakrishnan recently made a statement supporting the law and its benefits to society, forgetting the hundreds of years people of India suffered under it.
Given how Civil code is implemented, it might not be surprising to see aspects of Sharia law implemented in certain areas.

Dirt Digger said...

Karthik,
Thanks for your views. But please don't abuse the person just because he/she does not get the author/your POV.

Pilid said...

Thank you all for the comments. My apologies for not being able to get back earlier.

Anon,
You hit the nail on the head. You correctly ask 'Today’s judge might have a taste for European nations, but in the future why not other countries too?'. Absolutely. That is quite possible except that judges are graduates from Indian law schools who are better versed with the legal systems of European countries, US and the British commonwealth. They also have a natural inclination towards their laws and legal systems but that does not mean they are not open to consideration of other countries either. Other countries such as South Africa and Brazil increasingly figure into their thinking as well.

Next, you ask what is the proof that the only consideration in repealing article 377 was because this judge took a personal liking for Europe and America. I do not know if the judges have a personal liking for those countries but they have quoted extensively from opinions of the European Court of Human Rights, the US Supreme Court, the Canadian Supreme Court, the South African Constitutional Court, the report of the Wolfenden committee to the British parliament and the the Human rights committee judgment in Australia. There is in fact an entire section in the judgment on 'global trends'.

There was no dispute here that homosexual sodomy was covered under the category of 'unnatural sex'. The question was primarily how judges distinguish homosexual sodomy between consenting adults from other forms of 'unnatural' sex in order to provide it with exceptional treatment. The primary ground the judges cited to this was the fact that foreign countries have such laws and foreign judges have approved it.
(Continued in comment below)

Pilid said...

Anon,

Further, as you correctly point out, most of these countries followed the due process to provide gays with their rights. But then you ask 'Are you really suggesting that we re-invent the wheel?'. The answer is a definite yes. Democracy is all about reinventing the wheel. If you do not believe that, you do not believe in democracy at all. Every country and its people have their own unique set of experiences which is why laws evolve differently from country to country. Some continue to disallow sodomy, others have legalized it, some have given gays the right to form civil unions while others have allowed gays marital rights and there is talk in many places of extending them adoption rights as well. Indians, like people of all these nations, are also equally entitled to the due process which means they too should be allowed to look at what other nations have done, examine the merits of the proposition, grow comfortable with the idea and decide what needs to be done and how far to go.

As you point out correctly, the Indian constitution incorporated various elements from constitutions of other countries. The fundamental rights were borrowed from the American Bill of Rights largely though the wording was modified, the Westminster system of parliamentary democracy from the UK, some commerce provisions from Australia, the preamble from the Irish constitution, etc. But they were writing a constitution, not interpreting it. An Indian court of law is not a constitutional convention. The constitution incorporated certain rights that they thought were essential but this was not an exhaustive list nor was it meant to be. The power of adding new items to it was provided to parliament which could, by statute, provide additional rights and priveleges as it thought fit. For example, the recently passed forest act gave tribals additional rights. Likewise, parliament can provide additional rights to gays, lesbians and transsexuals as it sees fit and in drafting such legislation, it is free to take into account what different countries have done and decide which is best and which is not.

Regarding your last point about Victorian prudishness, you are right but what is good and desirable changes with time. Indians may still be clinging to those old ideas but since we are no longer governed by a foreign country, we ought to be persuaded like the people of those nations about the future course, not dictated by fiat as in the past.

Karthik, you correctly understand what I was trying to say.

DD, I have realized that the current CJI Balakrishnan is not very well informed nor does he seem to always study the question properly before he speaks. He did this after the terrorist attack in Mumbai last year when he wrongly (and shockingly) stated that Pakistan has no legal basis to cooperate with India. More recently, he dismissed a case about hanging saying it is very humane without actually examining the evidence about it (I have no idea if it is but the petitioner insisted that it was not).

Anonymous said...

DirtDigger, I realise I shouldn't have reacted to what Karthik said. Sorry for using the word Idiot!

Anonymous said...

Pilid,

You make a detailed case. But your justification for the need to re-invent the wheel does not hold water. You say “…look at what other nations have done, examine the merits of the proposition, grow comfortable with the idea and decide what needs to be done and how far to go.”

Here’s why I think that doesn’t apply in this case (article 377). Western nations went through ages of discrimination against women before they were given their rights. The suffrage movement went on for decades before women got voting rights in these countries.

When India got independence, our women were handed these rights at the offset. We didn’t to wait to see if everyone (the chauvinistic Indian male) got comfortable with the idea of giving women equal status in society.

Whenever you’re dealing with individual rights and liberty, you cannot hold the minority population hostage to the whims of the majority. It is not only needless to re-invent the wheel in this case, but also tremendously cruel to deny people their basic rights until the majority gets “comfortable” with it. And who knows how long they may take to do that? Or if they will ever?! You will let the homosexual population suffer because of that?

Of course the judge in this case was not framing the constitution, he was re-interpreting one of the laws. But the constitution is meant to be amended and the judiciary is one of the means to do it.

Also, referring to homosexuality as sodomy (in 377) explains it all. Sodomy is a religious concoction and the only reason it was made illegal in the first place was because the Church thought it was an abomination. Most Indians are now “uncomfortable” with homosexuality because centuries of oppression by dogmatic religions brought on first by the Arabs and then the British have dreadfully ravaged our once tolerant society.

And since the State should be separate from Religion, I don’t see why we need to continue to indulge the ideas of a bigoted religion which have unfortunately crept into the laws of our nation and accord it the luxury of “re-inventing the wheel”. Therefore it is absolutely un-democratic to perpetuate article 377 with the due process excuse.

Lastly, I think we need to understand that there are many many many stages to be considered in the process of legalizing homosexuality. What we’re dealing with currently is the critical issue of de-criminalizing it; of repealing the illegal status of the very act of homosexual sex itself. That’s the most basic of rights. As for marriage, civil unions, adopting children, etc, now these issues may be subjected to due process the way you have outlined it.

Hindu Fundamentalist said...

in spite of repeated requests, people are still posting anonymously. i think we should stop responding to anonymous posts however valid points they make. and if the trend still doesnt change, i will have no option but to block all anonymous postings.

Pilid said...

HF,

I agree that authors of posts ought to identify themselves and not be anonymous. The author of this post has however made a detailed argument and I will post a short answer here.

Anon,

I think the fundamental premises of our arguments are so different that we will have to agree to disagree. Constitutions have always drawn upon the experiences of others just as we did as well. Just as we gave women the right to suffrage, the more recent South African constitution incorporates a right to non-discrimination on ground of sexual orientation.

Regarding your point that 'whnever you’re dealing with individual rights and liberty, you cannot hold the minority population hostage to the whims of the majority', you may have a philosophical point but it has no real basis in legal systems because the will of the majority, like it or not, is an important consideration that policymakers have to take into account. Legal systems including ours recognize certain minorities (religious and linguistic for example) for special treatment and protection. Parliament is also free to add to the list but which minorities should be accepted and whose rights to recognize is something it decides.

You are right that it may be 'cruel' to do so but laws in that sense are always cruel to those at its receiving end. For example, zoophiles may find sec.377 very cruel, adults desiring of relationships with minors too would find such laws extremely cruel, exhibitionists would find public obscenity laws cruel and so forth. What is just and unjust in a society is decided by the majority in a democracy who must be convinced of the justness of a cause. That is why political struggles by minorities are so hallowed in democratic societies, why people like Martin Luther King and Ambedkar are revered by everyone - because they led a movement and suffered many years of struggle to fight for what they believed was a just cause even if the laws did not recognize it as such. In a free society, reason and conviction usually win eventually. It is no doubt harder but it is still the only way to do it.
(Continued in comment below)

Pilid said...

The judge of course always claims to interpret laws, not frame them but the job of a judge is to provide the most authentic interpretation of a text, not the most convenient. There are many good ideas in the world that are not to be found in the constitution and it is not the judge's business to find a contorted interpretation that somehow incorporates them. Finally, there is no provision for the constitution to be amended by the judiciary - not in our country, not anywhere in the world as far as I know. Art.368 provides the right to amend it solely to parliament.

The right to homosexual sodomy is not a state and religion issue even if the prime motivation for animus towards homosexuality is grounded in religion. Separation of religion and state deals with establishments of religion, not public sentiment grounded in religious belief.

Times change and so do ideas along with them. Every generation confronts the dominant ideas of its time. The problem with your view that marriage, civil unions, etc. may be subjected to due process whereas the act of sodomy itself (I will not get into the semantics of the word here) is different has no good basis again. The court's reasoning could very well be applied once or many times more to decide those questions as well, just at a different time when another petitioner comes along.