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/