LGBT Rights: Beyond Court’s Rights

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Any judgment by the larger bench of the Supreme Court can be reviewed in the near future while an amended law or the scrapping of Section 377 will not be undone until science and society demand it in a distant, future generation

How two consenting adults treat each other in the privacy of their bedroom should be of no concern of anybody else. The fundamental premise of individual liberty makes the further argument as to whether a certain form of sex is natural or unnatural redundant. The precondition “consenting” also negates the possibility of the law permitting molestation or rape, to deal with which there exists Section 376A, the Criminal Law Amendment Act, 2013. This must have been the consideration that made the Supreme Court agree to refer its previous decision on the issue to a larger bench for review. However, the last verdict on the constitutionality of Section 377 was not erroneous either, given that the judiciary cannot make a law; it can only interpret what is given to it in the shape of Acts by the legislature. Hence, the apex court had, in its wisdom in 2014, passed the buck rightly to Parliament where, individual views of a few legislators notwithstanding, the polity is collectively wary of hurting the sentiments of the majority — the heterosexual — that has been brought up on a version of Hinduism that got influenced by Islamic and Victorian sense of morality in a period spanning a millennium when the nation was ruled by central Asians and Europeans. Yet, this is a grey area since the term “homosexuality” does not figure anywhere in the law in question, making the court’s intervention a case of interpretation rather than legislation. Pending a new enactment or amendment by the timid bunch of 795 politicians, the court can certainly say whether the law would apply to homosexuals alone, or it has in its ambit issues like oral, anal and other forms of sexual acts between heterosexual adults and, additionally, the case of masturbation (which some religions do not approve of either). The second and third possibilities, arising out of the archaic legalese of the Section, should force every citizen into a rethink. In the case of a complaint by the wife in a hetero couple — rare but not impossible — the husband could be despatched behind the bars for indulging in, or forcing the partner into, a sexual act deemed “against the order of nature”!

It is unfortunate for the country that neither its traditionalists nor its modernists are ready to do a thorough research on the unsettled debate to alter their respective, rigidly held, unscientific positions. The first group refuses to accept that some people can be born homosexual due to medical reasons rather than ‘become’ homosexuals by choice. They fear the abrogation of the law would tempt some otherwise ‘normal’ people to turn ‘Western’ in outlook and, overnight, switch their orientation. The second group is as ignorant; it insists on its right to choice, belittling the significance of biology that made some individuals different, thus emboldening the argument of the opponent. Further, its emphasis on the right to privacy — ensured by an unrelated judgment of the highest court — is defied by its own act of grotesque parades in the streets in garish costumes. The straight don’t gesticulate with their partners in public places, do they? These queer marches achieve little more than attract further aversion of the remaining society. The minority community’s clamour for the right of choice has also suppressed a vital logic that goes in their favour: The mediaeval law makes medical treatment of homosexuals difficult, as the doctors ask for police clearances. When they move around untreated, it aggravates the risk of spread of sexually transmitted diseases, attacks of which the lesbian, gay, bisexual and transgender people are more vulnerable to. A law that only helps unscrupulous policemen blackmail the queer and push many of them to already crowded prisons full of convicts — who, the whole society believes, are criminals — should not continue. It does not serve any larger purpose of society.

The lack of enlightenment on both sides of the debate makes the vote-conscious politicians avoid imparting statesmen-like education to the people, and weak-kneed legislators shirk the responsibility of legislating in tandem with the times. Section 377 has met with the same fate that the Ram Janmabhoomi-Babri Masjid dispute did or triple talaq almost did. What should have been sorted out in the Lok Sabha and Rajya Sabha is now for election-proof judges to resolve. Ironically, if the Supreme Court heard a review petition once and dismissed it in 2014 and yet it is ready to reconsider its verdict in 2018, the judgment that will come from the larger bench — which can, at best, be like the Delhi High Court’s act of reading down the law — can be reviewed farther into the future, too. This would keep the LGBT people on the tenterhooks for ever. Ultimately, it is beyond the judiciary to scrap the ambiguously worded law. Why don’t the likes of petitioner Navtej Singh Johar and non-governmental organisation Naz, therefore, address public representatives instead?

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