By A.M. Jamsheed Basha
July 3, 2009
Delhi High Court Delivered A Landmark Judgement On Homosexuality - Will The Govt Amend Section 377 Of IPC?
It's stunning, yet real. It took nearly 148 years for wisdom to dawn on the two Judges of Delhi High Court Justice SJ Shah and Justice Muralidhar to pronounce Section 377 as violative of Art.21 which deals with personal liberty, Art.14 deals with the right to equality and Art.15 deals with the right against discrimination (on grounds of sex) of the Constitution of India. This judgement in a sense decriminalises the acts of homosexuality between the two consenting adults (i.e. beyond the age of 18) which otherwise would attract punishment ranging from 10 years to life imprisonment. However, other provisions of the Section 377 of IPC remain untouched.
Now the ball is in the government’s court. Whether to accept the judgement of the HC and bring in necessary amendment in the current session of the parliament or buckle under the pressure of religious groups like, Muslims, Christians and Hindus, and file an appeal before the Supreme Court against the order of High Court.
The reactions to the Delhi High Court judgement was mixed in the country. While Gay community celebrated it in Delhi and elsewhere along with their activists, others were up in arms especially the religious groups. Muslim clerics called homosexuality prohibited in Islam and the main source of the dangerous disease AIDS, hence unacceptable to them. The Christian priests called the act of homosexuality as unnatural to human behaviour that would disturb the society, though they have no comments on the legalisation in European countries, majority of which are Christians. Hindu priests one after another, came out with a statement that the legalisation of homosexuality would bring down the values of normal family life and the traditions. The society would stand to lose the best and well protected Hindu traditions. It’s unnatural and hence unacceptable to Hindu society. While cine celebrities welcomed it, as they will see more of "Dostanas" and "Fires" with actress Cerena Jaitely on the forefront, being an activist herself of the cause of gays in the country.
The political parties are in a bind. While Congress is neutral, BJP plays for time; SP is against it while Communists are the only political grouping to support the move to decriminalise homosexuality in private.
Now question arises, how does the Delhi judgement help the Gay community? Whether the rulings would be applicable nationwide or be confined to Delhi alone? The answer is the main benefit of the judgement for homos would be psychological as it reduces scope for their harassment. It may over a time reduce the social stigma as well.
However, it is too early to celebrate as it has not been made legal. It only freed them from criminal action. They have to wait till the government takes a stand on making it a legal through an amendment repealing Section 377 and transfer the other provisions of the same Section 377 dealing with sexual offences such as "non-consensual sodomy" and paedophilia to IPC Sections 375 and 376 dealing with rape.. The commentators say that it would greatly relieve the consenting gays of constant harassment and blackmail by the police.
What will the government do now? It has already sounded before the judgement that they may bring in necessary amendments. But they suddenly were on back foot, retracting their earlier stand due to outside pressure. Now they feel relieved that the Delhi HC has spared them from a apolitically difficult decision.
All said and done, the government has to do a lot of talking when someone goes on appeal against the Delhi judgement. Supreme Court may call upon the govt to explain its stand. Then the govt would be in a bind whether to accept the HC judgement and bring in necessary amendment or buckle under pressure from the religious groups, who oppose it tooth and nail.
It appears that the cabinet is divided on the issue. A number of key Ministers however favour decriminalisation. Interestingly, although the government represented by the home ministry in consultation with the law ministry opposed Naz's PIL, it was National Aids Control Organisation (NCO) coming under health ministry that took Naz's side. It is a ticklish and politically embarrassing issue to the government has to take a bold stand notwithstanding opposition from the religious groups.
Briefly on homosexuality. It is nothing new in the humanity. It has existed from time immemorial. According to Cerena Jaitely, a vocal supporter of Gay movement, there were more than 15,000 species in animal kingdom where homosexuality is prevalent. Comparison of humans with animals came for a flak from the commentators participating in the debate.
Though man is also an animal but the difference is man being 'animal rationale'. According to Plato, desire is one of three main sources of human behaviour. Desire has its seats in loins; it is a bursting reservoir of energy, fundamentally sexual. Homosexuality is a natural thing to happen in men or women who have the urge due to various circumstances and ambience conducive to such acts, genetics not altogether ruled out. It is a private thing happening between two consenting adults within the four walls of the bed room. Then why should anyone have any objection to it, as long as it does not affect the society. Many things happen within the private confines of a bedroom. Nobody could deny this happening even today. People and society therefore need to be pragmatic and grow in this fast changing world from their narrow tendencies.
Religious leaders may please keep their religious views private as it should be confined to the followers of their religion. If they have any objection, let them educate their followers on the flip side of homosexuality. Let them not try to impose their views on those who hold pragmatic views. If gays exist, let them exist. In any case they are not new in the society. They exist in the society from time immoral, though they did not come out in the open for their cause as they do today. One can now see so many gays both men and women come out in the open without covering their faces. That means they have no worry over the possible social stigma to be attached to them. The government therefore has to be very rational and take a pragmatic view before deciding on the legalisation to make homosexuality legal. In any case very few were prosecuted under the penal provisions of Section 377 of IPC. The law itself was 148 years old introduced by Lord Macaulay during the colonial rule and certainly it needs to be reviewed keeping the present situation in mind. Jai Hind.
A.M. Jamsheed Basha is a Chennai-based columnist