377: WE CAN EXPECT SOMETHING POSITIVE THIS TIME.

I don’t how true it is but it is great – that today was only the fourth time when the Supreme Court reopened a curative petition – against its own order.

Gay rights activists say so claiming that they are now quite hopeful with the development that saw the Supreme Court forming a five-member constitutional bench to look into legality/criminality of the Section 377 of the Indian Penal Code (377 of IPC) – that there would now be a positive outcome – based on their demand of decriminalizing 377 again – based on related developments the world over including in the conservative Catholic Ireland that legalized gay marriages last year – based on their just demand to finally give expression to gay rights in India.

If homosexuality has been a taboo – it is basically for political reasons that have decided how societies orient and reorient their structures – that how societies have been orienting and reorienting their layers in every stage of civilizational graduation – and homosexuality has always been there – discriminated and persecuted – for something that is so personal, so intimate that should have no concern about it.

The Section 377 of the Indian Penal Code – that criminalizes gay sex says – “Unnatural offences.—Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with 1 [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

Well, that is a lot – in fact a loadfull of stuff for complete harassment.

Who am to decided what is natural or unnatural for someone else’s sexual preference – an activity so intimate – so if anything is unnatural in all this – it is banning gay sex or homosexuality.

Hope, with today’s development in the Supreme Court and with yesterday’s development in the Madras High Court where a judge observed that it is the high time that we legalize homosexuality in India, the road ahead will see going back to the days which began after the Delhi High Court decision in July 2009 that decriminalized 377.

The four years, between the 2009 decision by the Delhi High Court and the 2013 decision by the Supreme Court, did much positives for the gay people with the LGBT community coming out in the open to open assert their sexual preference. Yes for the whole LGBT community – we, as a society, need to accept the fact that alternative sexual preferences have always been there in our society, and that that is also a way of life.

The two years since the SC decision in December 2013 have been a downhill journey, especially persecuting for those who had started breathing free in that four-year period with arrests and humiliations.

Scrapping 377 could be an opportunity for politicians after the apex court put the ball in politicians’ court observing ‘Parliament was the appropriate place to repeal the IPC section’. But as expected, our conservative politicians didn’t make any move in the last two years.

Today, the Supreme Court could have taken the route the Delhi High Court had taken, decriminalizing 377 and issuing directives to the government in this regard. But even this one, constituting a constitutional bench shows there has been a serious mindset change since December 2013 and we can expect something positive this time.

©/IPR: Santosh Chaubey – https://santoshchaubey.wordpress.com/

377: WOULD TOMORROW BE THE DAY WHEN WE WILL BE ABLE TO UNDO A SOCIAL WRONG?

It is going to be an important day tomorrow and could well be a landmark one if the Supreme Court (of India) accepts the demand by activists (and by the ‘logically thinking’ people) and delivers a verdict overturning its December 2013 verdict recriminalizing Section 377 of the Indian Penal Code (IPC), that, in turn, overturned a Delhi High Court order of July 2009 decriminalizing 377.

Section 377 dates back to our colonial times, to 1860, and legally bars ‘sexual activities between persons of same sex’.

It is simply draconian. Criminalizing such activities through 377 was wrong even then – back in 1860 – because it was simply against the nature of ‘nature’ – was against the natural flow of the right to privacy in each individual’s life.

Like in matters of worship and religion (or even food habits), sexual preferences of an individual is a private, intimate matter and others should not poke in their nose there. Okay, it was a different society and social values back then in 1860 – in India and across the world. But that is now some 160 years back.

Much has changed in these days. The world has seen a sea change in its appearance. The worlds of 1860 and 2016 are entirely different.

So why not upheld that ‘fundamental law of nature of not interfering in private lives of others’ now?

Is enough still not enough for terms like LGBT discrimination and 377 misuse?

And even the Supreme Court, while recriminalizing the Section 377 again, observed that the ‘Parliament was the appropriate place to repeal the IPC section’. So, in a way, it was not a direct denial. But then, decriminalizing 377 was always a sensitive political issue in our country and therefore was never a guarantee. So it was better if the court did it.

Then, now could be the time – that tomorrow could be the day when we will be able to undo a social wrong that is centuries old – and has been used and misused consistently?

Can we sense what can be in store tomorrow with an important observation by the Madras High Court today on homosexuality? According to a report, a judge of the Madras High Court observed, “Why not the central government amend marriage laws to include the homosexuality as valid ground for divorce, as gays and lesbians cannot exhibit interest on the opposite sex which is required for consummation of marriage?”

The judge further said, “More than 30 countries, including a conservative nation like Ireland, have decriminalised homosexuality and legalised gay marriage by way of referendum.

And then he questioned, “Could LGBT be considered as offenders merely for having exhibited their natural sexual orientation and their sexual acts, which are different?”

©/IPR: Santosh Chaubey – https://santoshchaubey.wordpress.com/

377 CRIMINALISED AGAIN: STRANGELY, THE GAY-SEX IS ANTI-SOCIAL AGAIN, AFTER 4 YEARS!

Straight, twisted, simple, complex, thinking, senseless, reverent, ignorant, mindful, thankless – whatever one is – one cannot be denied the right to live his the way he/she wants if it is not affecting the other lives.

It is basically about his/her human rights, universally defined by the United Nations as: Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible.

..equally entitled without discrimination..these rights are all interrelated, interdependent and indivisible..RIGHT TO EQUALITY..some estimates say there are 100 million of them in India..excluded..made outcasts again..when they are just like you and me..yes, with a different view of life..that is their individual choice that doesn’t interfere in other lives..and their right to live the life the way feel has to be respected..

It was a strange decision by the Supreme Court of India yesterday to wash its hands off on approving a norm that a High Court had paved the way for in 2009 to become social norm. The Delhi High Court, in its landmark ruling in July 2009, had decriminalised the Section 377 of the Indian Penal Code that made the gay-sex a criminal act.

Though the Supreme Court didn’t make any negative comment on the LGBT community rights, it pushed the ball to be rolled by the government thus delaying the whole issue and in doing so, it has again, made 377 a tool to criminalise the gay-sex and so to victimize the LGBT community.

Like faith, relations and sexual orientations are very private aspects of an individual’s life and no one should interfere in such decisions, not even courts and governments.

It is silly to talk of norms while talking of same-sex marriages and gay-sex when we organize discourses on big-ticket terms like ‘individual freedom’, ‘freedom of expression’ and ‘right to privacy’. Why should we make war cry on NSA snooping act then?

One may be straight but one should not be straightjacketed while deciding on their identity, their freedom of expression, their freedom to lead their life their own way, their freedom to formulate their norms (that do not encroach in others’ lives), their individuality and their life just because, by virtue of one’s position in society and in the system, one has been given the power to make the norms for them.

It is true members of a society have to follow some laid down norms if the society has to move ahead progressively. But it is also equally true that norms need to change with time otherwise they start weakening the weaving of that society; they start stinking.

Can we allow punishing and killing for inter-caste, inter-religion or same-Gotra marriages? We cannot. Such practices were well-entrenched unspoken norms once. They are still norms in many mindsets. They kill in the name of honour. But, legally, we punish them. For any progressive, civilized society, such practices can never be norms.

When we give consenting adults the right to choose their life partners irrespective of what the family and the society say, why can’t we give them the most basic right to them, the right over their sense, the right over their bodies?

When the Delhi High Court had delivered the landmark judgement in 2009 after giving a negative verdict some years ago, it was on the directive of the Supreme Court to reconsider the stand taken and so everyone was sure that the top court was going to take a favourable view giving the fight a legal validity in finality.

It was due to this expectation that everyone was taken aback yesterday when the Supreme Court set aside the Delhi High Court order. Now the ball in the government’s court and at least a year’s fight is ahead.

Sharing here the article that I had written in 2009 after the Delhi High Court verdict that made the future looks so certain for such members of our society who are just like us and must be given the equal rights that we enjoy.

QUEER, LGBT, 377..FUNCTIONAL VOCAB GOT ENRICHED..
July 12, 2009

We had a Mexican batch mate in Communication course at Banaras Hindu University.
That was not so long ago.

Abraham had travelled all the way from that part of the world to India to fit it in his itinerary of career advancement. We made good batch-mates initially. There was something peculiar about him which I didn’t notice or could not take seriously at that time. He would walk with me but would abstain holding my hands and would be very cautious about it. Sometimes he would ask me about people being gay or lesbian when he would see people walking holding their hands. I did what I had to say. I would go on explaining it as part of Indian culture and emotive bond that we spontaneously inculcate in our relations and we know, for sure, for most of us, we are natural with all these gestures of body-language. I can say I had been able to convince him about it that it was not so prevalent though it was not absent from the society. I had a perception like most of us that it was something very, very restricted in occurrence, certainly not millions of cases with around 4.5 million cases of HIV/AIDS in India involving men having sex with men (MSMs) as mentioned by previous Health Minister A Ramadoss last year.

But that was not long ago.

Then I was not aware of it that it would become a sort of national debate that it has become now. It is good to see a debate growing on a sensitive issue on a wide scale and that too in a span of few years. 377 is the buzz word now. Delhi HC decision to decriminalise homosexual sex between consenting adults is certainly a landmark for an individual’s identity. True, it raises many debatable questions; we need to accept it as part of the process. Foremost factor is the value of human dignity. We, human beings, are basically emotional creatures and need some outlet to depend on and we go on to develop relations within the circle. It may be anyone; even one’s own self, whosoever clicks. Choosing someone as your intimate one is your private decision. People should be left with their lives as long as it is not interfering directly with lives of others. But there are bottlenecks and bottlenecks. The religious leaders, across the sections, have closed their ranks against it. Government which had not so differing voices before and just after the Delhi HC decision, seems divided now, and is seeking more time from the apex court, the Supreme Court. But then the government was never very clear about it with differing views of Health Ministry, Home Ministry and Law Ministry on the matter since Naz Foundation started a legal battle in 2002. And so, this divide within the ranks of the government was just a matter of time on an issue which has religious tentacles and therefore electoral prospects.

That was not a long ago.

Homosexuality has been a sensitive issue. It dates back to ancient times. It has both positive and negative connotations if we go with the scholarship available on texts of ancient India. While Manu Smriti, which laid a code of conduct for human behaviour, has implicit and negative references to it, Kamasutra is vivid about it not going into debates and implications of societal norms related to homosexuality. Many other scriptures, too, have mentions of homosexuality. What is important here, to infer from all this, that homosexuality has been an issue, though this time it has got a wide fervour and we can go on finding why this time.

But in a country where talking even about straight sex is highly suppressed, considered a taboo, talking about homosexuality was no less than a sin. Homosexuality was not at all a matter of debate. What is important here to note how it was subjugated to our phony ways in handling sensitive but unorthodox issues? True change is happening, we have started discussing about sex education and advocating for talking about sex in open; still we have varying and largely opposing counter-demands, violent retributions and retracting tactics every time we seem to have arrived at a decision to implement something unorthodox according to our societal norms; still we have not been able to make sex education a matter of national debate so as to make it universal, so as to induct it into school education. We cannot do that till we leave our escapism at bay. Let’s accept it, let’s not divert now.

When talking about subjugation of homosexuality, it is clear it had to happen but how come, in just eight years, the same has become a matter of a national debate. It is important to be probed. It is inferential and it is implicative. It can throw light on the way we think, the societal norms that tend to thrive. Also it leads us to ponder over another big issue, issue of insipid culture of debate in our country on matters that might have far reaching implications. Had it not been like this, we would have a much better society, we would have well received outcomes for well conceived plans. Amartya Sen says we Indians are basically argumentative; it is something ingrained in our nature and so in our culture. He goes at length explaining this in his book, which too, traces antiquity to modernity of culture and a debating Indian.

That was not a long ago.

Why then this insipid culture of debate? Probably, we all know the answers. We have stopped caring if we are being heard. We react, we boil internally, then we go back to do the usual things as nothing has happened. We have become more compromising as a society. Had it not been like this, we would have raging debates and not just politicking over issues like reservation for affirmative action, reservation for equal opportunities, uniform civil code, caste discriminations and internal violence, sex education, educational reforms, illegal immigrants, still higher illiteracy and poverty rate and so on, even after 60 years of independence. Every such debate has been subjected to subjugation in the name of societal norms, aping alien culture, national interest and what not. The policy ballooning has been very well carved out, it seems. We need not go into the statistical details of national and international agencies to prove it. Instead of focusing on basic issues to uplift the living standards of the last man, what we have seen largely, is foul play of words.

That was since a long ago. That was not a long ago.

It makes it a queer case the way homosexuality, the Queer phenomenon, has become a sort of national debate in just few years. But do we have ways to assess what the majority of people in the streets think about it. We do not have. At one hand the debate focuses on rights of an individual identity, on the other hand it is an ironical case study given the pace it could get. By that I don’t intend to hurt anyone’s sentiments. I am trying to be objective here from a macro-viewpoint, diverting for a while from an individual viewpoint. Ironical because why we couldn’t have this sort of debate on issues of far more inevitability to the texture of our society? Child marriage has been a curse, but its prevalence in this age compels a media house to produce a chart topping show. Have we ever had a raging national debate on the issue of child marriages? Had it been there, application of the law would not be so insipid. Similar is the case with dowry incidents and widow re-marriages.

How long will it go like this? We do not have answer.

Certainly the Delhi HC decision is a landmark for individual identity and freedom of expression. Personal vanity has to be respected at any cost. LGBT community has always been part of any society. They were sidelined. The mainstreaming movement started in other cultures had to come to India. We simply can’t ignore valid human rights given to someone in a different culture in the name of societal, religious or spiritual norms in our culture. We should wish the apex court would ratify the decision. Queer, LGBT, 377, Homosexuality should remain part of the functional vocab. We should wish the debate would continue to include the LGBT community in the mainstream to achieve the objective of a more homogeneous texture of the social sphere. We should wish it will lead to a culture of comprehensive debates on other issues.

That should not take so long. We can wish only.

©/IPR: Santosh Chaubey – https://santoshchaubey.wordpress.com/