The shadows of Grey areas

A lot has been said and out-poured recently about Article 377 of India and the latest Supreme court verdict. Principally I would be with the masses who have termed this as sheer stupidity, going backward, violating right to freedom and practice personal preferences. But being a devil's advocate that I am, I tried to figure out why was this done. I mean, no matter how 'dummy' our democracy is, the judiciary is obliged to provide valid reasoning behind everything being said or done. Another point about court verdict is- it does not try to get influenced-emotionally or in any way by the populist opinion and demands. So a Supreme court would not really log on to Facebook accounts to see how the young generation feels so strongly about something (which is mostly based on peer influence, half baked believes and several other motives including impressing someone, making an image, attracting attention etc. etc. but sound logic and reasoning.)

 

So here is it- facts, meaning and rationales

 

This article 377 was introduced in India by British rulers which in simple terms, criminalizes 'carnal intercourse against order of nature.' this really is open to interpretation but is widely, including by the law, accepted as any form of intercourse other than heterosexual. Verbatim it states "Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine." 

 

Naz Foundation, a Delhi based NGO filed a lawsuit in 2001 in High court seeking legalization of homosexual intercourse between consenting adults. Taking a moment to understand Naz foundation motto, it is a foundation that works in the field of HIV/ AIDS and sexual health in India. They provide support to HIV patients for treatment and prevention. 

 

In 2009, article 377 was challenged in High court. The High court forbade discrimination on basis of unreasonable classifications based on sexual orientation quoting Article 15 which prohibits discrimination “on grounds of religion, race, caste, sex or place of birth;” and Article 21, which guarantees “protection of life and personal liberty.” Article 377 was not amended but held up for parliament to strike down, if they may. This was a great victory for all elite modern thinkers and LGBT community in particular. India was lauded by international media for this revolutionary decision. Recently, on December 11, 2013, Supreme court stated that the 2009 order of High court is constitutionally unsustainable as only Parliament can change a law, not courts. 

 

This means, technically, Supreme court has not really criminalized or recriminalized LGBT rights as opposed by Article 377 but pointed out that the very ruling made by High court in 2009 is not in purview of how our political framework is laid. This also doesn't necessarily reflect the opinion upheld by the law on LGBT rights as interpreted by Article 377... If we may, we should ideally be unhappy about why this basic framework was overlooked by judiciary and how did they manage to go beyond what falls in their area of functioning and took calls that legislature is supposed to take?  We may get annoyed on 4 years it took to point this out and keeping people falsely hopeful, or hanging for that matter. And we may urge the government to take this issue in Parliament to address Article 377 on priority.

 

This means that there is still hope and what Supreme court has done is not really pass a judgment on the previously passed judgment of High court or on what India as nation thinks about LGBT rights. Now, having said that  its worth looking at why few people are in favor of upholding Article 377 which otherwise comes across as an open and shut case of human right violation and blatant discrimination?

 

I will not touch conservative  religious groups who encourage homophobia or state homosexuality against god and nature and that bullshit. There are groups which have a point when they propose keeping the current law status-quo. First and most importantly, there is Delhi  commission  for protection of child rights (DCPCR)  that had approached Supreme court to reverse HC verdict. Their logic?

 

In last 150 years, Article 377 has been applied to only 200 cases. All these cases were applied to sodomy and of these, 90% victims were minors. Article 377 was the only article that helped protect the victims. Now there is POSCO (Protection of children from Sexual Offense) Act passed last year, which actually addresses the issue more sensitively. Also, withholding Article 377 should ideally not impact them as  it addresses only 'consenting adults.' DCPCR argues that simply addressing Article 377 without addressing the fall-outs concerning child rights, child abuse, LGBT kids adoption/ parenting and social stigma simultaneously in country like ours is disastrous.

 

The point is, there can be no universal argument to these issues. The point is, legal and criminal are two different things and not everything that is illegal is wrong nor everything that is consentual is right, strictly speaking on largely accepted norms of right and wrong. The topics such as Euthanasia, Abortion, Drugs, Prostitution, Homosexuality all come under this umbrella. It is hard to take a moral, right or legal stance on these. Most countries have made a divide of legal vs. decriminalization which essentially doesn't take any stance but keeps it in grey area, others sided one way, taking wrath and appreciation of masses alike.

 

I doubt till we exist in our current form of civilization and organized society, these matters will or can be unanimously resolved. There will always be culture specific inhibitions, region specific spill-outs and ideology specific oppositions. As individuals, we can and do choose to assign areas we can't decide in no-man's land in our head. Fortunately or Unfortunately, countries don't work that way... What they decide seals the quality of life of several people falling under the political, social and judicial boundaries. Hence, this is a big task. It requires overthinking and ensuring if all, even the remotest facets are being considered justly.

 

However, as a common man, I do hope that sooner or later, as the decision has to be taken, then between the two evils, lessor evil may be chosen. Decision needs to be made after careful and timely thinking. The repercussions, foreseen and unforeseeable will be there and they will have to be addressed as well. Afterall, the very reason constitution is flexible- and thankfully so- is to keep on plugging holes, making space for dealing with social changes and crimes or undue divides arising out of the same.