Are homosexuals criminals ?SC upholds 377 IPC – A slam on the gay communities…16 - 31st Dec,2013, Just In Print

Are homosexuals criminals ?... SC upholds 377 IPC – A slam on the gay communities…

The court upheld India's 1860 colonial British homosexuality law, which says that gay sex is "against the order of nature" and is punishable by up to 10 years in prison, life time. The court ruled that changing the law would be left up to Parliament, not the courts.

"We hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable," the two supreme-court judges who presided,  over the case said in their 98-page judgment, released lateWednesday dated 11/12/2013.

The Supreme Court has set aside the July 2009 ruling of the Delhi High Court decriminalizing gay sex between consenting adults in private. In the world’s largest democracy and its second largest country, gay sex is illegal and the status of homosexuals has become that of criminals once again.

Rights groups say the law—known as Section 377 for its place in a 150-year-old Indian penal code—had been used for decades to harass homosexuals.

A bench of justices G.S. Singhvi and S.J. Mukopadhyaya brushed aside the contentions of Naz Foundation, an NGO which was the first to file the plea for decriminalising section 377 (unnatural offences) of IPC, that penal provision was misused by police to harass and torture persons belonging to the LGBT community.

"Respondent No.1 (Naz Foundation) attacked section 377 IPC on the ground that the same has been used to perpetrate harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community.

"In our opinion, this treatment is neither mandated by the section nor condoned by it and the mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section. It might be a relevant factor for the Legislature to consider while judging the desirability of amending section 377 IPC," the bench said. 

People across India were shocked by the decision. Most legal experts and activists had expected the country's highest court to uphold the landmark decision, which had been seen as a crucial first step in empowering India's gay community.

The bench said Parliament is authorized to delete section 377 of Indian Penal Code (IPC) but till the time this penal provision is there, the court cannot legalise this kind of sexual relationship.Section 377 (unnatural offences) of IPC makes gay sex a criminal offence entailing punishment up to life imprisonment.

The bench allowed the appeals filed by various social and religious organizations challenging the High Court verdict on the ground that gay sex is against the cultural and religious values of the country.

The bench, however, put the ball in Parliament’s court to take a decision on the controversial issue, saying it is for the legislature to debate and decide on them.

Section 377 is a legacy of British rule and it is disturbing that a postcolonial democratic state like India would hold on to colonial morality codes that blatantly violate human rights. India should join countries like Australia and New Zealand that have already abolished this colonial-era sodomy law that they too inherited, and take the lead on ending such discrimination.

Colonies and countries that retain versions of the British sodomy law include:

In Asia and the Pacific : Bangladesh, Bhutan, Brunei, Kiribati, Malaysia, Maldives, Marshall Islands, Myanmar , Nauru, Pakistan , Papua New Guinea, Singapore, Solomon Islands, Sri Lanka, Tonga, Tuvalu, and Western Samoa.

In Africa : Botswana,Gambia,Ghana,Kenya,Lesotho,Malawi,Mauritius,Nigeria,Seychelles, Sierra Leone, Somalia,Swaziland,Sudan,Tanzania,Uganda,Zambia, and Zimbabwe.

Eleven former British colonies in the Caribbean also retain sodomy laws derived from a different British model than the one imposed on India.

The United States now is enacting, by both custom and law, the Ordinances of the Amorites; therefore the nation is defiled before the holy God of Israel and faces His judgment. By promoting homosexuality, America has become like the ancient pagan Amorites and has now come under the judgment of God.

America promotes homosexuality by custom with events such as Gay Pride Day, Gay Awareness Month (June), Gay day at Disney land, Gay Day at sporting events and events like Southern Decadence in New Orleans . There are gay clubs in high school and colleges. The political parties are pandering to the homosexuals for their votes. By custom, homosexuality has woven into the fabric of America .

America is continually making ordinances to advance the homosexual agenda. Sodomites can legally marry in California and Massachusetts while many states recognize civil unions. Homosexuals are now able to adopt children and gain custody of children during a divorce. There are now numerous hate speech laws which are being used to silence opposition to the homosexual agenda. America is a long way down the road to enacting all the Ordinances of the Amorites.

The Bible warns of God judging a nation that walks in these ordinances. When the corporate attitude of a nation is friendly toward homosexuality then at this point the iniquity is full. It is apparent that “the cup” of America ’s sin is rapidly filling up. Americans hardly blush anymore at fornication and adultery. The nation kills over one million babies a year with up to 50 million killed since 1973. The legalizing of abortion was an additional Ordinance of the Amorites. Homosexuality is fast becoming a constitutional right.

The ruling means that what is in truth a question of personal liberty has once again become hostage  as it has been for decades now  to the tyranny of public and religious morality, including the beliefs and prejudices of lawmakers. A minuscule fraction of India’s parliamentarians are under 50 (which means the rest likely grew up in an environment in which homosexuality was unequivocally thought of as an aberration), and none are openly gay. This makes it unlikely they will consider the question of gay rights a specially urgent one.

The Judgment represents a victory for the alliance of Hindu, Muslim and Christian religious groups (otherwise almost never in agreement), as well as organizations seeking the codification in law of “Indian cultural values,” that had come together to challenge the 2009 judgment on Article 377. While Justice Singhvi’s decision is one that will distress many Indians who seek a society more receptive to the right of people to make choices about their own sexual lives and orientations, the reality is that it was the judgment of 2009 that was surprising in the unusual maturity of its detached consideration of homosexuality.

While speaking with “South Asian LGBTQ Groups in North America Disappointed with India's Supreme Court Ruling, Recriminalizing Homosexual Sex. According to them the Supreme Court has taken away fundamental rights that their own judicial peers convincingly argue are guaranteed by the Indian Constitution. In 2009, in a historic decision rooted in Indian jurisprudence and culture, the Indian High Court of Delhi declared 377 unconstitutional. For 150 years, 377 was used to brutally persecute sexual minorities across the country, and the Delhi Court correctly argued that the violent and foreign law contradicted the Constitution’s promise of absolute dignity and equality for all Indian citizens. Its decision effectively decriminalized homosexual sex across India for over four years—profound progress that the Supreme Court invalidated on 11^th Dec 2013.

The Indian Constitution not only empowers the judiciary but also requires it to protect minority rights. Rather than proving itself equal to the task, India’s highest court has sent the dangerous message that minority rights should be vulnerable to the whims of the majority.  Its decision is nothing short of a dereliction of their duty to uphold the Constitution.

But the fight is not over.  Activists of all stripes are determined to defeat 377.  We stand in solidarity with activists from Naz Foundation, the lead plaintiff calling for a repeal of 377; Humsafar Trust, a leading HIV/AIDS and sexual minority support and advocacy group in India; Voices Against 377, a diverse group of organizations and Indian leaders who oppose the ban; and countless other groups, writers, activists, politicians and community organizers that have worked tirelessly to construct growing spaces where LGBTQ people can live without fear of violence or discrimination in India. We are deeply inspired by their renewed determination to repeal 377.  As immigrant-based groups, we are especially concerned about the impact this setback will have on South Asians who worry that their government does not welcome them. In the days to come, we will create spaces where fair-minded South Asians can protest the Supreme Court’s decision, support each other and assist leaders of the cause.”

Where the Delhi Court’s ruling was bold and powerful, the Supreme Court’s decision is heartbreakingly timid. In overturning the Delhi decision and reinforcing 377, the Court side-stepped many questions on the merits of the case, and provided superficial and incorrect assessments of the rest.  Ignoring history altogether, it claimed that 377 does not discriminate against any group, but “merely identifies certain acts” as illegal.  The bench also implied that protecting the rights of LGBTQ persons was not their job but that of the Indian Parliament. 

"It's a black day for us," said Anjali Gopalan, the founder of the Naz Foundation, a nongovernmental organization that works on HIV/AIDS and petitioned in the original case. "I feel so exhausted right now thinking we are being set back by 100 years. . . . I think it's pathetic and sad."

Activist Sohini Ghosh called the judgment “not just a betrayal of the LGBT community but of the values enshrined in the constitution”. “Our fight will go on. We will fight till the bitter end,” she said.

Pallav Patankar from Humsafar Trust said the verdict was a big blow to the community.

“The Supreme Court has put the decision back to parliament. The reason it went to the SC was because parliament refused to discuss issues related to alternate sexuality. There is a need to address the issue,” he said.

The government had earlier told the apex court that there were an estimated 2.5 million gays in India and about seven percent of them were HIV infected.

Some papers see the verdict as a measure to "deny basic human rights" to a section of the country's population.

The Indian Express says the ruling is "sad and shameful" because Section 377 is "mostly used to harass, humiliate and deny freedom to consenting homosexual adults".

"The court, in this instance, seems to have abandoned its duty to protect fundamental rights, its capacity to lead progressive change, and left this difficult task to parliament," the paper adds.

For The Hindu, the move "has enthroned medieval prejudice and dealt a body blow to liberal values and human rights".

Newspapers also feel such a law has no place in a democratic country that aims to be a global superpower and fear for the future of the homosexual community in India.

The Hindustan Times says the decision has plunged India into "a less tolerant era".

"We cannot lose sight of the fact that fear of persecution may leave the community feeling marginalised and send it into hiding. Importantly, this may deny LGBTs [lesbian, gay, bisexual, transgender] access to healthcare services, thus increasing the risk of sexually transmitted diseases," it adds.

Most editorial writers are sceptical over the chances of the government moving quickly to make a fair law that honours the rights of the gay community.

The Indian Express says "preparing and bringing up the law will be difficult in the last stages of this government's tenure" but urges the MPs to "remember that the right to love whom you love, the need to stop living a lie, is more significant than other abstract political rights".

Adds The Hindu: "Barring a sudden dawning of a humane sense of fairness all around, Section 377 is here to stay in the medium term with all its horrific consequences."

The LGBT community in India has long struggled for recognition and acceptance in the country. Although some citizens in large cities like New Delhi have started to acknowledge gay rights, some homosexuals still encounter police harassment, demands for bribes, attacks and rejection from family. 

It seemed like Gay rights had been progressing in India, and gay pride parades have been taking place in the country since 1999, with larger events in big cities. A prince, Manvendra Singh Gohil, came out publicly in 2006. He has since become an advocate for LGBT issues and HIV/AIDS awareness. Plus, the country might soon legally recognize a third  gender. To many, this ruling is a huge step backwards for India.

Homosexuality and gay relationship is considered as immoral by most of our religions. But LGBTs need not be considered as criminals. They can be morally persuaded to correct themselves. They need not be inhumanly treated as criminals and punished for some aberrations in their personality which are not in their control.

Homosexuality has existed from the beginning of time and is represented in just about every species on earth. Most judgments   about this sexual orientation have been based on religious dogma, the roles of humans in society attributed to this concept of family: father, mother and children.Heterosexuality  is therefore the norm in a societal sense and thus anything else regarded as abnormal.

Homosexuality has always been normal for homosexuals,  the fact that they are in the minority, should have no bearing on how we perceive them. If you are attracted to the opposite sex, imagine someone telling you it was wrong and you had to fall in love and marry a same sex partner. 

People judge what they don’t understand and even worse what a religion tells them to. I am straight, but believe that human beings, regardless of sexual orientation, should have the same rights and opportunities to live a loving and productive life, just like the rest of us.

What’s worse is the psychological trauma that society has bestowed on homosexuals. Imagine being told you were an abomination, a Godless freak that deserved not to live. It’s hard to understand but many people believe this hateful view. And many gays, particularly young ones, can carry this burden, and lose all hope of self-worth.  In the end it is we, the straight members of our community that have created this cavernous gap between the groups. Gays get angry, and so they should, for our cruel and judgmental treatment.

In the end, peace must prevail. Surely love is more important than who is being loved. Sex is only a small part of our lives; companionship, friendship and love are lasting ideals that transcend any belief about sexual orientation.

We have no say in the circumstances and the genetic makeup of our birth. Who and what we are can only be dealt with as we live. Homosexuals are people first, human beings that have the same human aspirations as we do.

And now, the SC’s re-criminalizing homosexuality is a setback. After four and a half years of India’s living as a twenty-first century tolerant democracy that did not discriminate on the basis of sexual preference, the country has suddenly gone back to putting a 150-year-old British law above the immediate needs of today’s citizens.

Now the next government, whether progressive or illiberal, would have to deal with this issue, and decisively balance the country’s religious and cultural sentiments with its humanitarian and health needs. To take a crude example, criminalising homosexuality drives gays underground and makes it near impossible for the government to successfully carry out its HIV/AIDS programmes that hope to target about 4,00,000 ‘high risk’ gay men in India. More importantly, criminalizing consensual sex between adults drives the country back into the dark ages. But the gay movement and sexual politics has come of age in India, and this verdict cannot restrain that for long.

Crime" isnt that a very strong word? Just trying to figure out the definition of "Crime" in real sense. Wondering how ones choice of sexuality is termed crime by law?? Where are we heading to?

Society is the source of all evil. No good thing needs any endorsement, including that of a funny thing named society.

Siddhartha Shankar Mishra,

Sambalpur,Odisha