Asia’s homosexual community just got a shot in arm as one of the largest countries in Asia is moving decisively towards de-criminalizing homosexuality.
India’s gays prepare to join the rainbow nation
Governmnt ready to repeal law drafted under the Raj which made homosexuality a criminal offence.
By Andrew Buncombe in Delhi
Monday, 29 June 2009
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GETTYIndian transsexuals in yesterday’s gay pride march in Bangalore.
The Indian government is considering rewriting a law drafted more than 100 years ago that criminalises homosexuality. The news emerged as the capital, Delhi, held its second gay rights march yesterday and other cities across the nation played host to similar parades.
Reports suggested that senior ministers would meet soon to discuss how to repeal the so-called Section 377 that makes it a criminal offence for couples of the same gender to have sex. “This section is an absurdity in today’s world,” a government source said. “The government will certainly move to repeal it.”
The battle to change the law has been long and slow. The legislation was drafted by Lord Macaulay in 1860 during British colonial rule and states that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment”.
Campaigners have long complained that the law is outdated and repressive, saying that while there have been few prosecutions during the past 20 years, it has been used to harass gay men. In 2004, a lawsuit filed by Voices Against 377, an umbrella group of non-governmental organisations working on issues from women’s rights to Aids prevention, was filed at the Delhi High Court. The matter is still pending.
“Let’s not hold our breath on this,” said Angali Gopolan, head of the Naz Foundation, one of the groups in the lawsuit. “I am hopeful but I would rather wait until we have a result.” She said the new re-elected government led by the Congress Party might have felt it had a greater mandate to act. “Perhaps it is more sensitive,” she said. “Let’s hope they follow through.”
In a country that once produced explicit treatises on the sexual arts only to have emerged as a conservative, buttoned-down society, gay rights have rarely been a priority for the authorities. The rights movement is in its infancy and gay life is driven largely underground. Eunuchs, the so-called third sex and once an essential part of the Mughal court, also face discrimination and abuse. Campaigners say driving homosexuality underground makes it far harder to counter Aids and provide homosexual men with treatment should they become infected.
Few Indian celebrities are openly identified as gay. One of the few, the Delhi-based fashion designer Rohit Bal, who has dressed Uma Thurman and Naomi Campbell, recently told a television interviewer that he knew many ministers, businessmen and society leaders who were gay. He said he also understood the pressures that kept them in the closet. “I wish there were more prominent people who were open about such things,” he added. “Personally, I don’t give a flying fuck what people think about me. If anyone wants to judge me, judge me for what I am and what I have achieved and not for whom I am sleeping with.”
The organisers of Delhi’s second gay parade had been encouraged by an unexpectedly large turnout last year. They were hoping for even larger numbers this time and had organised street theatre and a wedding band. Other cities such as Bangalore and Kolkata have been hosting similar marches for years.
Leslie Esteves, a gay rights activist and march organiser, said: “Last time, because it all came through at the last minute, we didn’t have enough time to spread the word. But this time we are prepared. There were people not only from Delhi but also from other states in the north.”
The move to review the law appears to be driven by the Home minister, Palaniappan Chidambaram. His predecessor, Shivraj Patil, was opposed to changing it. Many in the government said altering the law would help end discrimination against gay people and could help fight Aids, but Mr Patil claimed a repeal would encourage the sexual abuse of children. The law is also used to prosecute paedophiles.
The Prime Minister, Manmohan Singh, asked departments to review the government’s position and resolve any differences, as a result of the case being heard by the High Court.
“It should have been done long ago,” a government official told The Indian Express. “The provisions are beyond any reason or logic. But now since there is a consensus emerging the decision to repeal is only a matter of time.”
Equal rights? A pink guide to Asia
*Pakistan
Homosexuality is still a criminal offence: Islamic law prescribes 100 lashes or death by stoning for sodomy, and Pakistan’s civil code requires a minimum of two years in prison. But gay couples in cities such as Karachi and Islamabad are increasingly finding the courage to set up home together.
*Thailand
Bangkok’s ladyboys are world-renowned, and Thai society is relatively relaxed about homosexuality, yet under the law it was considered a “mental problem” until seven years ago. But households headed by gay couples lack the legal protection of those headed by heterosexual ones.
*China
China has not been quick off the mark about gay rights: homosexuality was classified as a “hooligan act” until 1997 and a “mental disorder” until 2001. But in the past few years it has been making up for lost time. Gay tourism to the country is growing. The launch of Go Pink China saw the first China-based travel company offering gay-friendly tours, and this month Shanghai celebrated its first Gay Pride week.
27 Comments
July 1, 2009 at 10:40 pm
Unfortunately, religious leaders from all religions have risen up and strongly resisted the Home Ministry’s thought of annulling Sec. 377 of the Indian Penal Code. Many of these leaders, the Christians prominent among them, for instance, like to be exempted from the provisions of each and every law, on the grounds that they need special protection. They tend to have strange bedfellows, insofar as leaders from other religions, which they normally denounce from every available pulpit and even from some not made available to them willingly.
On the question of a sexual orientation minority, that feeling of solidarity with minorities suddenly disappears.
To quote Voltaire,”Ecrasez l’infame*.”
*Note to YLH: This, btw, is where laicete started its journey.
July 2, 2009 at 3:24 am
On the question of a sexual orientation minority, that feeling of solidarity with minorities suddenly disappears.
it is those who are only interested in religiosity. the minorities themselves will do well to get rid of these bigots who have a vested interest in religion. they might claim ‘identity’ but they mean ‘religion’ and their version of it. the double standards that you point out should expose these vested interests, if only those who they claim to speak for wake up and could speak up.
July 2, 2009 at 4:12 am
I know for once that hinduism doesnt shun homosexuality(hinduism minus casteism is extraordinarily incredible!)) For demo , theres a town called Khajuraho in MP which has someof the most erotic statues of straight and gay gods( practising the athletic version of K sutra (if anybody among u visit india, dont miss Khajuraho!!!!)
@bonobashi, in the light of your comment , what are your views on a proposed single uniform code of law for all the communities in India(which is a pet issue of the RSS) and further, as you may know JLN(pbuh) with great difficulty got the Hindu code bill passed , but there never was an equivalent for the muslim/christain /sikh community for India whose members are still being admin through archaic civil laws.Is parity in this case bad?
July 2, 2009 at 6:51 am
@S
Thank you for your generous gift of a grenade with the pin taken out. I shall try to follow your wishes by compressing within the limits of a comment on a blog site to deal with that which has taken scholars massive volumes.
As a secularist of the Western sort, I believe that all citizens should be treated equally under the law, and that there should be no discrimination for any Indian citizen due to her sex and religious observance. In this context, please note that Nehru had already painted India into a corner, as seems to have been his unfortunate habit, with the following words: The word ’secular’, perhaps is not a very happy one and yet for want of a better, we have used it. What exactly does it mean? It does not obviously mean a society where religion itself is discouraged. It means freedom of religion and conscience.”
Crap.
What he really meant was that given the tender state of mind of the Muslim minority left behind, the Congress were going to leave no stone unthrown to give them a sense of security. As has been pointed out, very often, a community in a state of siege seizes on irrational elements to defend itself. So the Hindus seized on the symbolism of a cow to signify their religion, and where they were powerless to defend their temples or even their persons from conversion, they built up a surrogate, the cult of the cow. Similarly, the conservative Muslim leadership of India resisted any further progress from the Shariat Act of the British (1937), on the grounds that by tampering with the Shariat, the state was tampering with the foundations of faith.
As a result of this stand-off, with the conservative Muslim leadership against any change, and the Westernised liberal elements hesitant to wound an already-wounded community, four things happened:
1. The provisions of the Indian Constitution remained contradictory, and were never resolved, and have not been resolved to this date;
2. The call for a Uniform Civil Code was hijacked by the conservative Hindu, almost as a punishment for the Muslims (there is a Uniform Civil Code of the European type extant as a condition of accession in part of the country, a very small, idyllic part);
3. The situation of an Indian Muslim woman is far inferior to that of her counterpart in Pakistan, due to this tug-of-war between the conservative and self-appointed leadership of her community, and the conservative, self-appointed leadership of the majority community;
4. It seems unlikely that a single-step from present operation of personal law to a Uniform Civil Code is possible, without going through the stages of uniform codes for different communities first.
Very briefly, may it be noted that the Hindus have a Civil Code, which also covers the Sikhs, Buddhists and Jains explicitly; each of these three faiths may seem a separate law, but if they do so, they will need to do so only as a matter of identity, as there is no practical difference between the personal laws of these confessions.
Finally, given the unsatisfactory performance of the legislature, another branch of the government has stepped up to fill the breach. The judiciary has recognised, carefully and clearly defined the contradictions between the Constitution and real-life practice, and has constructively interpreted every stupid law passed, including the infamous Muslim Women’s (Protection of Rights in Divorce) Act in 1986 (the Shah Bano act, through which Rajive Gandhi and the then Congress Government betrayed the whole Muslim community and delivered it bound hand and foot to irresponsible conservative leadership). Even this law was ‘interpreted’ by the courts to ensure greater conformance with the requirements of the Constitution and an innovative interpretation of the narrow provisions of the laws prevailing.
To return to your question, ‘Is parity in this case bad?’ and the preliminary comment. First, the Sikhs don’t fall into these constrained communities; the Muslims and Christians do, but the courts have corrected the inequities to a considerable extent. Second, you have not made it clear what you mean by parity. It could mean a set of Civil Codes to fit each community, it could mean a Uniform Civil Code. I think one will lead to the other, but adopting community-wise Civil Codes will create an intermediate rallying ground for dyed-in-the-wool conservatives of all faiths, and there is a case that the Uniform Code is worth trying for in one fell swoop. There of course we have the problem that the BJP probably wants to introduce a kind of Hindu Civil Code through the back door; it is unlikely that the party which is backed so solidly by the traders and the bania will readily open up inheritance rights to women.
Bottom line: reverse the compromise on the nature of secularism brought in by Nehru and the Congress under Gandhi’s penumbra, enforce the strict segregation of religion and state, introduce a Uniform Civil Code which owes no overwhelming debt to no single religion and discriminates against no religion, and deny reactionaries their last legal recourse for the oppression of women. Let Laicete prevail.
July 2, 2009 at 9:16 am
@bonobashi,your welcome;-) and thanks alot for indulging me with your scholarly reply(bytheway,do you recognize my handwriting?)Having read tens,if not hundreds, of your posts,one can easily come to the conclusion that you are an analyst,historian,synthesist and essayist ,all of equal competence,bundled into one.PTH,you are lucky.
Moreover, i also very much agree with the essence of your writeup’s para4 that a community withdraws into its shell especially during times of intimidation/perseution.Everytime the ghallukaras(panjabi for genocide) happened(whether during the mughal rule or the gandhi rule),sikhism became more militant in nature and in general ,more rigid in the external manifestation of overt symbolization(like the kirpan and the uncut hair).Now ,that sikhs are far from being oppressed,some of my friends who come from most conservative jatt families have dared to cut their hair and their families after minor rona-pittna have accepted their acts(such acts were heresies in the past).I may or may not be right ,but i see this as an evolution of sikhism happening during relatively peace time.
———————————————————
as for section 377, i fail to understand whats the problem in rescinding it.What has the shahi imam of jama masjid (or for that matter kanchi peeth’s sankaracharya) to do with laws relating to personal liberty?Jawed naqvi often laments the fact that GOI considers mullahs THE representatives of muslims in India.
On a lighter note,Everytime i see a video of (gay) Elton John playing a ballad on his (pink )piano ,with the earrings he wears swinging, i get an urge of thanking the heroes of french revolution for inditing the declaration of the Rights Of Man and of the Citizen..
PS:after aeons, the skies have burst forth here ,saving tens of thousands of acres of unirrigated paddy fields and with them ,thousands of farmers from bankruptcy.It must be raining in pakistan too(how close we are!!!)
July 2, 2009 at 11:35 am
HISTORIC JUDGEMENT!!!!
Today is judgment day for gays
2 Jul 2009, 0730 hrs IST, Smriti Singh, TNN
NEW DELHI: The Delhi high court is due to deliver on Thursday its much-awaited verdict on a petition seeking decriminalization of homosexuality.
Seven months after concluding the hearings on the petition filed by Naz Foundation, a bench consisting of Chief Justice A P Shah and Justice S Muralidhar will announce whether section 377 IPC could be “read down” to decriminalize private consensual sex between adults of the same sex.
As an NGO working among AIDS/HIV-affected people, all that the petitioner sought was a reading down of the wide-ranging provision, which imposes life sentence on those found to have “carnal intercourse against the order of nature”. Much as the provision sounds archaic, there is little likelihood of it being repealed as the relief sought by the petitioner, by its own admission, has been framed “to ensure the continuance of applicability of section 377 to cases involving children or cases involving non-consensual sex.”
Thus, if the high court saves the provision by reading it down, section 377 will continue to be in the statute book to deal with paedophilia and non-consensual sex between members of the same sex. This is a likely scenario going by the observations made by judges during the hearings last year and the contradictions that remained unresolved in the government’s stand.
While the home ministry wanted the petition to be dismissed, the health ministry supported its contention that section 377 criminalized homosexuality per se, it was obstructing the AIDS/HIV prevention efforts among high-risk groups. Whatever the outcome, this is the second time the Delhi high court will be pronouncing on Naz Foundation’s petition against section 377. In 2004, it dismissed the petition at the preliminary stage stating that “an academic challenge to the constitutionality of a legislative provision could not be entertained.” It further said that when no personal injury was caused to the petitioner by this provision, the petition could not be examined.
The foundation then approached the Supreme Court, which disapproved the manner in which the high court had disposed of the matter. SC observed that when there was a debate on this issue the world over, “where is the question of the petition being academic? We are not able to accept the approach of the high court that it is an academic exercise and there is no personal injury.” Accordingly, in 2006, SC directed HC to reconsider the matter in detail. The judgment is coming close on the heels of statements from ministers on the possibility of a legislative intervention because of growing demands from the community of lesbians, gays, bisexuals and transgenders (LGBT). If the judgment serves the purpose of decriminalizing homosexuality, the government will be spared the burden of amending a provision laden with religious and cultural sensitivities.
Interestingly, in the new team of law officers appointed by the government, at least two of them — attorney general Goolam Vahanvati and additional solicitor general Indira Jaising —- have publicly supported the demand for decriminalizing homosexuality.
July 2, 2009 at 11:35 am
Delhi High Court legalises consensual gay sex
————————————————————-
New Delhi: In a historic judgement, the Delhi High Court on Thursday legalised consensual sex among gays.
The court struck down Section 377 of the Indian Penal Code (IPC).
A bench of Chief Justice Ajit Prakash Shah and Justice S Muralidhar said that if not amended, Section 377 of the IPC would violate Article 21 of the Indian Constitution, which states that every citizen has equal opportunity of life and is equal before law.
“We declare Section 377 of IPC in so far as it criminalises consensual sexual acts of adults in private is violative of Articles 14, 21 and 15 of the Constitution,” the Bench comprising Chief Justice A P Shah and Justice S Murlidhar said.
However, Section 377 of the IPC which criminalises homosexuality, will continue for non-consensual, non-vaginal sex.
Section 377, a law from the British Raj era, says “unnatural sex” is a criminal act.
The court further said that this judgement will hold till Parliament chooses to amend the law.
“In our view Indian Constitutional Law does not permit the statutory criminal law to be held captive by the popular misconception of who the LGBTs (lesbian gay bisexual transgender) are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster dignity of every individual,” the Bench said in its 105-page judgement.
In 2004, the High Court had dismissed the same petition, saying that it was an academic challenge to the constitutionality of a legislative provision which could not be entertained.
July 2, 2009 at 11:37 am
oopS WANTED TO PASTE THIS ACTUALLY!!!
Delhi High Court legalizes homosexuality
2 Jul 2009, 1050 hrs IST, TIMESOFINDIA.COM
Print Email Discuss Share Save Comment Text:
NEW DELHI: In a historic judgement, the Delhi High Court on Thursday decriminalized homosexuality by reading down section 377 of the Indian Penal
Code. ( Watch )
The Section 377 of the IPC as far as it criminalizes gay sex among consenting adults is violation of fundamental rights, said the high court. However, Section 377 of the Indian Penal Code which criminalizes homosexuality, will continue for non-consensual and non-vaginal sex.
Any kind of discrimination is anti-thesis of right to equality, said the court, while allowing plea of gay rights activists for decriminalization of homosexuality.
Our reporter Smriti Singh from the court sketched the rejoice of the LGBT community.
Soon after the judgement, the supporters of the LGBT rejoiced the moment of victory and called it as the “first step to a better future”. “Great moment for us, we are hoping that the court will pass an order in our favor, we have kept our finger-across,” she further added.
It is amazing to see, how we have won the battle, said Shivangi Rai, counsel for the NAZ Foundation.
A bench of Chief Justice Ajit Prakash Shah and Justice S Muralidhar said that if not amended, section 377 of the IPC would violate Article 21 of the Indian constitution, which states that every citizen has equal opportunity of life and is equal before law.
The court said that this judgement will hold till Parliament chooses to amend the law.
“In our view Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconception of who the LGBTs (lesbian gay bisexual transgender) are.
“It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster dignity of every individual,” the bench said in its 105-page judgement.
Section 377, a law from the British Raj era, says homosexuality and “unnatural sex” is a criminal act.
While the home ministry wanted the petition to be dismissed, the health ministry supported its contention that section 377 criminalized homosexuality per se, it was obstructing the AIDS/HIV prevention efforts among high-risk groups. Whatever the outcome, this is the second time the Delhi high court will be pronouncing on Naz Foundation’s petition against section 377. In 2004, it dismissed the petition at the preliminary stage stating that “an academic challenge to the constitutionality of a legislative provision could not be entertained.” It further said that when no personal injury was caused to the petitioner by this provision, the petition could not be examined.
The foundation then approached the Supreme Court, which disapproved the manner in which the high court had disposed of the matter. SC observed that when there was a debate on this issue the world over, “where is the question of the petition being academic? We are not able to accept the approach of the high court that it is an academic exercise and there is no personal injury.” Accordingly, in 2006, SC directed HC to reconsider the matter in detail. The judgment is coming close on the heels of statements from ministers on the possibility of a legislative intervention because of growing demands from the community of lesbians, gays, bisexuals and transgenders (LGBT). If the judgment serves the purpose of decriminalizing homosexuality, the government will be spared the burden of amending a provision laden with religious and cultural sensitivities.
Interestingly, in the new team of law officers appointed by the government, at least two of them — attorney general Goolam Vahanvati and additional solicitor general Indira Jaising —- have publicly supported the demand for decriminalizing homosexuality.
July 2, 2009 at 10:59 pm
I think religious leaders have brokered our relationship with God or whatever be the powers too long. Its time to get direct.
July 3, 2009 at 12:13 pm
@Uper the gur gur annexe
The information will be forthcoming conditionally.
July 3, 2009 at 10:51 pm
Who knows what percentage of the population is homosexual (a better word than gay)? Majoritarianism is under attack. There are no norms in this kalyug. What is the next issue for the High Court?
The judgement is no more an occasion to be photographed with your tongue searching for your partner’s than it is for a straight to celebrate free sex by a demo. Sexual practices need to be celebrated in the private domain, not demonstrated in public.
All this fuss is appropriate to a human landing on Mars. Homosexuals have a right to celebrate-as for the rest of us; I wonder.
Is this a celebration of ‘Indian modernism’? This prissy state, hiding behind the petty coats of the judiciary; when it should boldly go forth, it carefully captures ramparts already under control. It celebrates victories it has not won-Shameful.
The Indian judiciary is more agile, not more liberal, than the Indian Government. The latter is just a straw man, a mask, a puffed up marshmallow. Could it not have done this ahead of the High Court. No wonder the judiciary is replacing the executive where it matters most.
As time goes by other minorities will stake their claims; the foot fetishists, the necrophiliacs even zoophiliacs, not to mention the traders and jobbers in such arts. Can the paedophiliacs be far behind?
Bonobashi and BC: Belonging to a minority does not come with a halo surely. What is the next step, gay marriage? Will the judiciary lead here too?
Sexuality as we now know is not only something you are born with but also changeable. Take shrimp for example, and other marine species which change sex when ever there is a shortage of one or the other. A chromosome here or there and what have you? No morality here, just a celebration of minorityism
Sexual confusion was well expressed by Gore Vidal in his ‘Myra Breckenridge’ and later ‘Myron’. Vidal, while an acknowledged homosexual never acknowledged declining sex with females.
For those able to take a mystical view Bulle Shah’s’ desire to ‘kanjari banke yaar manaana’ is one example of sex shifts, imagined or willing, for the larger cause. Lethbridge in his ‘Power of the Pendulum’ talks of the sexes, lying not on opposite poles but at an oblique angle to each other.
God made us love each other, even those of the same sex sometimes. Does he also make us love other objects not intended by nature; though we have scientific proof now that homosexuality is in built in some cases. Why not other forbidden loves?
July 3, 2009 at 11:01 pm
Who knows what percentage of the population is homosexual (a better word than gay)? Majoritarianism is under attack. There are no norms in this kalyug. What is the next issue for the High Court?
The judgement is no more an occasion to be photographed with your tongue searching for your partner’s than it is for a straight to celebrate free sex by a demo. Sexual practices are for the private domain not public demonstration.
All this fuss is appropriate to a human landing on Mars. Homosexuals have a right to celebrate-as for the rest of us; I wonder.
Is the Indian media celebrating ‘Indian modernism’? This prissy state, hiding behind the petty coats of the judiciary; when it should boldly go forth, it carefully captures ramparts already under control. It celebrates victories it has not won-Shameful.
The Indian judiciary is more agile, not more liberal, than the Indian Government. The latter is just a straw man, a mask, a puffed up marshmallow. Could it not have done this ahead of the High Court. No wonder the judiciary captures the moral high ground and the sphere of the executive.
As time goes by other minorities will stake their claims; the foot fetishists, the necrophiliacs and zoophiliacs, not to mention the traders and jobbers in such arts. Can the paedophiliacs be far behind?
Bonobashi and BC: Membershiop of a minority does not come with an attached halo surely. What is the next step, gay marriage? Will the judiciary lead here too?
Sexuality as we now know is not only something you are born with but also changeable. Shrimp for example, and some other marine species change sex when ever there is a shortage of one or the other. A chromosome here or there and what have you? No morality here, just a celebration of minorityism
Sexual confusion was well expressed by Gore Vidal in his ‘Myra Breckenridge’ and later ‘Myron’. Vidal, while an acknowledged homosexual never acknowledged declining sex with females.
For those able to take a mystical view Bulle Shah’s’ desire to ‘kanjari banke yaar manaana’ is one example of sex shifts, imagined or willing, for the larger cause. Lethbridge in his ‘Power of the Pendulum’ talks of the sexes, lying not on opposite poles but at an oblique angle to each other.
God made us love each other, even those of the same sex sometimes. Does he also make us love other objects never intended by nature for the lesser majority. Why not other forbidden loves?
Did not Voltaire also say that if someone can make you believe absurdities he can also make you commit atrocities. In the sexual context where does that land us.
July 3, 2009 at 11:32 pm
@hayyer48
You are getting carried away a bit, I’m afraid.
What is your point? Do you object to the law? Do you object to its repeal? Do you think it all a waste of time? It wasn’t clear from your post what you were protesting in quite so fiery a manner.
It is not a question of minority vs. majority on this. What I was referring to was perhaps identical with your stand, if you step back and look at it closely. I am arguing that a minority cannot plead for special status on certain occasions, to meet certain objectives of its own, and then turn in its tracks and deny similar status to minorities of another sort, in this case, the sexual sort, and remain consistent in its attitude. The way in which the conservative Hindus have reacted (through the BJP), the conservative Christians have reacted (there are enough sound bytes of narrow minded clerics intoning profound-sounding idiocies not to need any further validation or quotation), and the conservative Muslims have reacted. However, on the question of irrational tenets of faith which are not to be questioned because a large number of people believe that they are historical truths (Hindus), denial of the rights of female members of society (Hindu, Christian, Muslim), OR restrictions on individual freedom of speech, citing the transcendent religious sensitivities of a community or a parish (Hindu, Christian, Muslim), there is practically unanimity among the religious conservatives.
It’s a question of an old law being misused on the one hand for oppressing individuals, on the other being misused for the illegal gratification of bribe-seeking individuals. I put it to you that the State has nothing to do with this aspect of private life, and that laws still valid on the subject are likely to treat it in a ‘primitive’ manner, out of line with current social consensus on the subject. This is objectionable for precisely the same reasons that the Shariat Act 1938 is objectionable; the law stands in need of revision, but given our rule by sheep, it will not be revised. So millions of Muslim women will not have their injustices addressed, although Pakistan, Turkey, Tunisia, just to name a few, have advanced far beyond us.
My point in a simple sentence is as follows:
If you wish to claim protection of your minority status, then be prepared to honour the minority status on other axes of other groups.
There are many laws and regulations that require repeal or revision. Some of them carry a longer shadow than others, partly because of their controversial aspects. This present matter under discussion, Art. 377 of the Indian Penal Code, is controversial because a large number of religious conservatives want homosexuality banned. It is sheer nonsense to carry around bans, restrictions or regulations on matters that don’t harm other human beings. Some of these are legacies of our colonial rule, such as the Indian Cinematographic Act; others have been misused by babus for indulging their own inner urges towards being control freaks, like the Official Secrets Act. As far as I am concerned, shrimp are welcome to get their jollies in any manner that they wish, and so is Ashok Row Kavi. As long as it is between consenting adults, that is, including consenting adult shrimp.
July 4, 2009 at 2:09 am
• On the question of a sexual orientation minority, that feeling of solidarity with minorities suddenly disappears.
• On the question of a sexual orientation minority, that feeling of solidarity with minorities suddenly disappears.
• Bonobashi and BC: Belonging to a minority does not come with a halo surely.
• You are getting carried away a bit, I’m afraid. What is your point?
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
Hayyer48 Bonobashi BC:
A majority versus minority issue?
Huh?
Why is it that in the South Asian context most debates in the public arena assume a majority-minority binary duality?
While one can understand that perhaps it is easier to understand it as such in the cultural-religious context or in the context of region and language (call me somewhat slow; even in this context I have a much easier time seeing issues as pertaining to human rights; civil behavior or even as common sense rather than as a majority-minority) why does a simple matter of justice and fairness become an issue of either a defense of minorities (Bonobashi\BC) or an assault on the majorities (Hayyer)?
To me this issue of gay rights in India is a very straight forward issue (pun not intended); it is an issue of basic human rights.
Thus what two consenting adults do in the privacy of their home is none of the business of the state or of the church (any church) for that matter. In this context the decriminalization of a homosexual act was long overdue.
My personal problem with this frame of reference in which every issue (or most issues) are framed in the context of ‘protecting’ one or the other minority rights versus the majorities is that it is very polarizing on one hand and on the other it encourages the politics of agitation and confrontation which quickly degenerates into lawlessness which is more often than not, very disruptive to public life.
More over in this framework rights are ‘won’ not as a matter of principle but as an expression of one group’s power to distrupt or cause a general mayhem.
In the long run this leads to a stronger group identity at the expense of a national\civil identity.
I end my post with a question and a comment.
My question to you all is this; why is the issue of decriminalizing homosexuality not a human rights issue that should matter to someone like Hayyer even if he disapproves of it personally (My own position is closer to his regarding keeping displays of sexuality; both gay and straight out of public life) than a minority issue?
My comment is this; most past and present issues in South Asia; whether it was related to fighting the British rule in India (racism) or to the issues of religion (freedom of worship) or of regionalism (freedom of expression) can be defined in the framework of human rights and justice for all.
Moreover in this frame of reference most issues will have a black and white clarity which can stand the test of time; since the issue of ‘justice and equality for all’ is non nogotiable like a mathematical absolute.
Like the value of pi it is and will remain, timeless and universal.
Regards.
July 4, 2009 at 4:04 am
Hayyer 48:
Sexuality as we now know is not only something you are born with but also changeable. Shrimp for example, and some other marine species change sex when ever there is a shortage of one or the other. A chromosome here or there and what have you?
>>>>>>>>>>>>>>>>
A few years ago a medical college in Chandigarh published a paper titled:
‘The Skewed sex ratio in Punjab’ (1) according to which Punjab had a lamentable male to female ratio of 1000:874 according to the 2001 census. (Chandigarh was even worse at 1000:773. )
After reading your post above, I wonder if finally there is a solution to this problem; that is if only we can somehow ask our hardy scientist to change a chromosome here and a chromosome there, we may be able to synthesize a new Punjabi (albeit with a slightly shrimp like smell) who would then read the results of the census as they are published and then dutifully change sex in the required numbers to keep the desired ratio.
.
On a serious note, the issue of sexuality (nurture versus nature) is not such a cut and dried issue as you would like to have us believe.
It is a highly charged and an emotional issue that is hotly debate even in the scientific community and the jury is still out on this one.
Without taking any one side, I would like to draw your attention to a paper referenced below (2) which was one of the largest studies done on identical twins concerning the issue of sexual identity.
According to this study the factors leading to a sexual identity were a complex interplay of genetic and environmental factors in which genetics alone accounted for 35% of the differences.
Interestingly one of the lead authors of this study is Dr. Qazi Rahman, a Muslim; (go eat your hearts out all the Imams issuing a fatwa against the above ruling).
1. http://www.icfmt.org/vol2no4/skewed.htm
2. http://www.scribd.com/doc/3695686/Genetic-and-Environmental-Effects-on-Samesex-Sexual-Behavior-A-Population-Study-of-Twins-in-Sweden
Regards.
July 4, 2009 at 4:15 am
gorki
my response/comment was about bonobashi (in my view, correctly) criticising how the minority leaderships have been reacting. i see that bonobashi has used the term ’sexual orientation minority’ later on in his post, which is probably statistically correct, but my comment, nevertheless, was on the negative reaction from the religious leaderships.
btw, minority issues too can be about ‘human rights and justice for all’. but sometimes law alone is not adequate protection of ‘HRs and justice for all’. we all know that justice is not blind. for example, sometimes it is not colour blind. sometimes you need to use the strength of democratic structures and tools to (better) ensure what law alone cannot.
as for a minority’s democratic right to seek separation/secession.. if it is borne out of nothing more than a desire to assert identity.. then it is not a HR but it still is a democratic right – perhaps, just not as pressing/urgent and fundamental.
hayyer48
1. i think we all agree about the desirability of parliament being the preferable forum for law-making and the courts sticking to interpreting the law. regardless of parliamentary performance, the courts still have to administer justice.
2. being born in to a religion does not mean that one has no choice in the matter in one’s adult life. people must have the freedom to change/abandon religion. similarly, an athiest jew must still be allowed to hold on to her jewish identity as much as any other jew, if that is what she wishes. religion is changeable. some kinds of identity too can be changed, others cannot (some not without much expense and pain).
3. if somebody who should have never been sent to prison will no longer be sent to prison, why must this be celebrated only by those directly affected?
4. i don’t know exactly how the shrimp example applies. in any case, it doesn’t seem it makes any relevant difference to the issue at hand. but the paedophiliacs example completely misses the point, i’m afraid. can i say, with all due respect, that i find its mention regrettable.
July 4, 2009 at 4:21 am
gorki
i see that in a later post bonbashi has included criticism of the majority community’s relgious/conservative leadership as well. and my post of july 2, 3:24am, applies just the same to this leadership too.
July 4, 2009 at 10:00 am
My apologies if I appeared diffused and ‘fiery’. In extenuation I can only plead jet lag caused by a long flight back to India from New York, fighting of sleep while being under the influence, and not being certain if I should write a comment at all.
To clarify; homosexuals have the right to indulge without the fear of punishment. Are they a minority. Yes, and capable of political action on that basis. Are there are other sexual minorities? Yes. Should they unite to gain acceptance? I think the paederasts already are inclined to lobby that way. And, believe it or not, there is also a bestiality rights movement. Foot fetishists have no cause of action. No one discriminates against them. Now therefore, are these sexually minorities in the same position that homosexuals were a hundred years ago? Only asking? Therefore the reference to absurdities and atrocities a la Voltaire.
Next issue. Homosexuals may well celebrate but is it another feather in the cap of shining India as some comments make it out to be?
Remeber it is the same judiciary that has interpreted the law strictly so far. Our high courts are not like the US Supreme Court. Only our Supreme Court can aspire to that role and sometimes does, quite unconstitutionally I believe.
The penal code cannot be changed by a High Court or even a Supreme Court ruling. If buggery is a human right it was always so, even in 1950.
Similarly there are laws against sex with minors and animals. Can the judiciary declare them a violation of human rights?
Finally, India would be truly shining if this pusillanimous government had the courage to debate these issues and take a decision in Parliament. Hiding behind the skirts of a populist judiciary does it no credit. Government has got itself into a corner now. Damned if it contests the legal frailty of the judgement in the Supreme Court, and damned if it accepts it and changes the law. Who knows what liberty the Courts may take next using this judgement, if uncontested, as a precedent.
July 4, 2009 at 11:48 am
@hayyer48
It did seem that you were writing in an altered state.
I am not a judge. Not a lawyer either. All statements relating to legal issues that I make are to be considered with these facts in mind.
It may be useful to consider the situation in terms of the nature of the participants. Two consenting adults – the emphasis being on consenting as much as on adult – should face no restrictions; if one of the participants is a child, normally defined as unable to defend himself or herself as an adult would or might, it should surely make a difference.
Animal sex, or bestiality? I would go by the rights of animals, and their ability to defend themselves, assuming that in the absence of any mechanism to judge their willingness or otherwise, their unwillingness is always assumed.
Foot fetishists? I am rapidly losing my composure, but am barely able to intone in my most serious tones that a foot able to defend itself and clearly willing to participate, to the extent that a judgement can reasonably be made of its inclinations, should be left to do what it wishes by way of gratification.
July 4, 2009 at 12:16 pm
I am glad that we can argue against pedophilia, but bestiality?
Isn’t it less cruel to merely make love to an animal rather than eat it. How would you punish vegetarians who practice it. What if it is argued that the animal concerned likes it and is willing and able?
July 4, 2009 at 1:39 pm
@hayyer48
You do turn on a dime, don’t you? Have you ever played polo?
I don’t think it was argued that one should either kill an animal or penetrate it. May I, with the greatest diffidence, propose a third option, that of doing neither.
Regarding punishing vegetarians who practice bestiality, one supposes that the least cruel and unnatural punishment would be to feed the bestialist to the beast.
Just a suggestion.
July 4, 2009 at 7:10 pm
How did we get to this point? I think it began with the rights of minorities as an oppressed class and the fuss made about it. Sexual minorities that is and human rights.
Among human rights is the right to enjoy your sexuality the way nature gave it to you as opposed to the mass. Our enthusiasms about giving minorities their rights, now have a feel good compulsiveness about them. I suppose I was wondering where it will all end.
A good manual of sexual variance could produce all sorts of minorities, some harmless, others less so. Where does kinkiness begin and when will the kinkies go in for PILs? Not too far in the millenium I should think.
July 4, 2009 at 7:22 pm
How did we get here. How did I get here actually.
It was about the judiciary deciding what was a human right and not parliament or a constituent assembly.
Hence the turning on a dime. We can lay down limits on what is permissible and what is not through our elected representatives. Arbitrary decisions on sexual preferences by judges who blow with the wind is something else. Blowing with the wind is allowed to politicians only.
July 4, 2009 at 10:55 pm
@hayyer48
I was just pulling your leg. Let’s discuss this a day or two later.
July 5, 2009 at 12:52 am
We can lay down limits on what is permissible and what is not through our elected representatives. Arbitrary decisions on sexual preferences by judges who blow with the wind is something else.
>>>>>>>>>>>>>>>>>>>>>>>
Hayyer:
Actually I saw your point after you mentioned that your concern in this debate was to clarify the legal question about the balance of power between the legislature and the judiciary.
I think you raised a very valid point.
So where exactly does the ultimate power reside in a democracy?
I am no lawyer therefore I must start with a disclaimer that my POV is not so much of a technical nature as that of an interested citizen.
Lawyers (and would be lawyers) are welcome to understand my point and couch it in acceptable legal language if they so desire
.
So with that out of the way, I believe that technically Hayyer is right that elected representatives should be the ones to legislate what is desirable and what is not.
However there are practical considerations.
Given the fact that a legislative body is by definition elected for a finite time span, it reflects not so much the spirit of the nation as it does its passions of the moment. (For the sake of the discussion I will ignore the fact that with the relentless fall in standards in our body politic, there is a high likelihood that many of the current day legislators are themselves are criminals and thus unable to inspire confidence in their abilities to make an informed decision)
Also given the fact that that the legislators are representatives of certain areas and are often elected based on local issues (and who have to go back to their constituents time and again to get re elected.) Thus they may vote not so much to further the long term interest and the spirit of the constitution but to reflect the opinion and passions of their constituents at the given moment.
Many times this is not one and the same thing.
A case in point was the infamous Shah Bano case and the ensuing legislation that was disingenuously rammed down our throats by Rajiv Gandhi’s congress with one eye on the ballot battle.
So did the judiciary have a role in this case (and does it have a role in such cases) and what can it do?
I believe the answer is yes.
Judiciary is not the source but it is the keeper of the constitution.
I believe it has a right, nay I think it has a duty to interpret all the laws in light of not only the legislative agenda but also the letter and the spirit of the constitution.
So let us see what does the constitution say in the case of Shah Bano case?
I will have to leave the detailed argument up to the lawyers but will have to rely upon a lesson I learnt in my seventh grade civics class in which we all were made to memorize the preamble of the Indian constitution by heart.
Fortunately I can still recall it in entirety decades later. The relevant words are as follows:
“…..to secure to all its citizens:
Justice: social, economic and political;
Liberty of thought, expression, belief, faith and worship;
Equality of status and of opportunity…..”
Thus the Shah Bano case legislation denied the social justice to one of its citizens and also denied equality to her.
In this case I believe the Supreme Court had every right (a duty even) to take up the case and rule on it.
Similarly in case of gay rights to have consensual sex; laws criminalizing such an act are again against the spirit of the constitution which promises social justice and equality to all its citizens.
These earlier laws of lord Macaulay’s times were thus illegal and a judge was well within his rights to judge and to to interpret them.
A few days ago you wrote a very interesting essay about whether India was a nation and then what makes us Indians.
I enjoyed it immensely (as I do all your posts) and was even amused with your tongue incheek question whether it was curry as a common dish or if a common mode of answering the call of nature made us a nation.
I think jokes apart; what makes us a nation is the 117,369 words of English language that makes up the written constitution of India.
It is a faith in this text, and the readiness to defend it; with our lives if needed, that makes us a nation.
(During the Khalistan moment, the Akali dal members court arrested after burning a page of the Indian constitution to highlight their grievances.
Years later their leader P.S. Badal was asked a question in an unrelated interview as to his life’s most painful memory.
He did not mention a loss of a family member or the stint in jail he had had to spend. Without hesitation he said his worst memory was of the regret he had after he had burnt the piece of paper with article 25 of the constitution on it.)
Neither is this judicial activism an Indian phenomenon; Judiciary has been very active in the United States in overturning the legislative decisions whenever it felt these contradicted the spirit of the US constitution most famously in the battles to end segregation (Brown v. Board of Education) among others.
I now leave the floor open for the legal eagles.
Regards.
July 5, 2009 at 1:39 am
@Gorki
You need to step back on the floor for a second.
Please consider reading this article:
http://en.wikipedia.org/wiki/Uniform_Civil_code
and revisiting your post.
There may not be any change required; however, considering Wikipedia’s normal standards, this is pretty well written. It will satisfactorily replace your ruminations on the provision of the constitution and the scope of intervention left for the judges.
After you have reviewed your opinion, and honed your arguments, we can meet once again at the lists.
In case you are wondering why I am being so unfriendly and why I am not slipping this reference to you in private, the fact is that I thought this to be an exceptionally well-written piece, one well worth sharing with the readership of PTH.
July 5, 2009 at 11:16 am
@Gorki
Please look up the article on Uniform Civil Code in Wikipedia. Ordinarily I don’t recommend Wikipedia except for quick orientation and references, but this article is unusually well written.
Like a fool, I put in the URL and now someone has to look it up; Administrators, my apologies.