Section 377!

Section 377! Section 377 is a crazy eye-opener! It has forced me to take a look at India as it is today! We claim to be living in a secular and free country! A country whose proud heritage and history consistently boast its tolerance and acceptance of EVERYONE! A country which is said to have one of the most democratic laws in the world! We are often quoted as a prime example of democracy and of being an embodiment of the very spirit of tolerance, freedom, and diversity!

“The section was declared unconstitutional with respect to sex between consenting adults by the High Court of Delhi on 2 July 2009. That judgement was overturned by the Supreme Court of India on 11 December 2013, with the Court holding that amending or repealing Section 377 should be a matter left to Parliament, not the judiciary.”

- An Excerpt From Wikipedia!

The Supreme Court of India repealed the judicial ruling of the High Court of Delhi on the grounds that amending or repealing a law should be a matter of legislation, and not a judicial ruling! Apparently, the discretion of the esteemed members of the judiciary of our just nation are below reproach! Judges can make irreversible decisions as to what happens to human lives, property, etc., but cannot make such judgements! Anyway, ever since we started civics lessons in school, I’ve always remembered India as having been quoted as one of the most open-minded and just countries in the world! Terms such as secular, socialist and the like pop into my mind rather pointedly in this context! It has always been portrayed as the country that makes the toughest of decisions no matter what, because the most prominent and dominant feature of India’s Constitution is “inclusiveness”! And I’ve always believed that! Believed that India would always be the nation that (at least on the surface or in the letter of the law) reflected one of humanity’s most difficult traits; the ability to not only be tolerant of, but to welcome people who are intrinsically different from us! But Section 377 has been a serious and rather late reality check for me!

The Supreme Court has, however, asked the Parliament to look into the matter and decide if Section 377 should be scrapped or not! Call me pessimistic if you will, but I don’t see that happening anytime soon! India is a largely homophobic country! Its politicians and representatives are just as homophobic as any average person of the nation, if not more! Human nature is to oppose anything that it considers wrong; to resist anything that it deems unnecessarily difficult; and to ostracize/eliminate anything that it fears! The fear gripping this nation is crippling its judgement, its ability to transcend bias and be broad-minded enough to truly expand its diversity in a wholesome and non-prejudicial manner! It is shameful that a matter such as homosexual rights is still an issue in the 21^st century! After everything the human race has collectively been through, we still haven’t established certain common universal laws! There can be no true social peace and prosperity until that has been established and the only way something like that is ever going to happen is if we manage to eradicate such unjust laws and differences! In today’s world you’d expect to distinguish between the laws of different countries by highlighting the different rates of taxes imposed in different nations! But no; we are still at a stage where we have not settled upon what would universally constitute the fundamental rights of a human being!

Among other quotes in Wikipedia, one says, “The Supreme Court’s view is an endorsement of our scriptures.” (EXTRACTED FROM THE ORIGINAL QUOTE IN WIKIPEDIA), while another says, “In Judaism, our scriptures do not permit homosexuality”.

I completely agree with what the two quotes say! The Supreme Court’s view IS an endorsement of their respective scriptures! (So much so, that it seems a pity that the objective of our country and its laws is not to specifically satiate the whims of every scripture there is!) However, pitiable as it may be, and sympathetic as you may feel for this not being the ultimate objective of our country, OURS is a secular country! We may have more theists than anywhere else in the world! The population of our nation may single-handedly worship more deities and gods/goddesses than everywhere else in the world collectively does! But in the spirit of that secularism that is our birthright, as promised to us by OUR very own Constitution (and promised to us not as a gift from the makers of the Constitution itself, but given to us as a truly free gift of nature and augmented by the Constitution of India; for it is a free and universally undeniable right, to enjoy and do as we will; as long as we do not forsake the ability of those in our vicinity to do the same); is it not unfair for us to deny other human beings from doing as is their wont, when their actions are, in no way compromising the overall peace and prosperity of the nation?! The role of the law is to protect the interests of the people of the nation! That includes all its cultures, sub-cultures, groups of various castes, creeds, origin (on various bases), etc., etc.! Equality before the law is the spirit behind blindfolding the Sacred (YES, the SACRED) Lady of Justice! A pity that I’m having to quote a character from Spiderman, Uncle Ben, in such a context, but I do so with pride when I say, “With Great Power Comes Great Responsibility!” There is unequivocally a heavy burden of responsibility that we inherited from our forefathers when we were born into a country such as India; the onerous task of preserving and persevering with our cultural diversity and our penchant for “inclusiveness”! But just because we find the thought of honourably fulfilling our role as this generation of Indians rather cumbersome doesn’t mean that we bear the weight of that tremendous responsibility with the same ill-grace as the great Titan, Atlas himself! That said, OUR heritage most certainly is NOT to write off the minorities and their interests in order to satisfy the Heads of religious orders and/or to ensure that the laws of the nation are in accordance with scriptures, but to defend the interests of those people (shocking as it may seem to some of y’all)! And as for our performance with regard to fulfilling our inherited duty, I’m afraid I’m gonna have to use a phrase often used by my sister here, “EPIC FAIL!”

We allow adults to choose whether they wish to drink or not and whether they wish to smoke or not (though they are fully aware of society’s open denigration for such “anti-social” elements and the “harmful effects” of such habits, they are still GIVEN a choice); on the grounds that every adult must have the freedom of choice; but we would deny that very same “privilege” to an adult when it comes to the matter of his/her sexual orientation! After all, it is indeed a mere matter of choice! It isn’t a debate about an act of forced intercourse; cause the last time I checked, rape was illegal and I couldn’t hear anyone protesting and lobbying for “Rape Rights”! So when we can, in clear conscience, condone any act of a sexual nature between two consenting adults, what difference should it make to us if those two adults are of the same gender or not?! The answer is, none whatsoever! However, history has made it amply clear that what should be and what is, are rarely one and the same!

Several quotes going around the country with regard to homosexuality include the phrases “breach of peace” and “against nature”/”against the natural order of things”! Breach of peace?! Excuse me, but just because you’re having a hard time accepting the fact that everyone around you isn’t exactly a carbon copy of you; and that your denial of the truly natural order of things is so traumatic to you, that you don’t have any peace of mind; doesn’t mean that the natural peace, harmony and stability of society is being jeopardized in any way! If someone being different from you disturbs you very deeply, though it does not truly or significantly affect you in any way whatsoever, please know that you exhibit a deep-seated psychological imbalance; that you are not a fully emotionally developed person; and that such imbalance within you statistically says that you could end up a sociopathic serial killer! So before you go screaming for jail time for somebody else, I suggest you take a quick moment to reassess who would be classified as a greater potential threat to human society and fully comprehend what it is you’re actually asking for, my dear homophobe! As for those people who believe that homosexuality is against the natural order of things, please wake up! It wasn’t Dr. Frankenstein, it wasn’t a radioactive spider, it wasn’t experimental drug enhancement, or even gamma radiation that caused this to come about! Some people are just homosexual! The majority of the population is straight, true, but that doesn’t mean THEY ALL ARE! It’s like being left-handed! So hear me now, and hear me clear: the day you’re willing to pass a law to throw all southpaws in jail is the day Section 377 would be a fair and just law! Well actually, it still wouldn’t be fair; but at least it would show a damned bit of CONSISTENCY!

In retrospect, it is probably prudent that legislative amendments BE made by law-makers and autonomous power to overthrow existing laws NOT be given to the judiciary! This is advisable in the spirit of dispersion (decentralization) of power and to mitigate the risk of a (disguised/open) dictatorship ever emerging in a democratic country such as India! It’s probably done to ensure that no one man or woman has the staggering power to drastically alter the course of human history forever; because any error made by said person would be catastrophic, and the repercussions of such a blunder would be, more threateningly, irreversible! However, in our haste to justify the rulings of the Supreme Court, we overlook an important fact – the fact that when you create and impose rules and laws that make no sense and have no moral standing, you are but pleading that the people break the law! When you show no compassion for the interests of the minority and try to compel them to act as you see fit; when you make them do something so completely against their wishes; you are but forcing them to indulge in “unlawful” activity! Whether you believe in “Justice Delayed Is Justice Denied” or not, you must realize the havoc such a decision could create; no matter how briefly the ruling may stand (and that is if you have blindly optimistic faith in the system and assume that it won’t be long before the Parliament amends/scraps Section 377 and all is well in the world again)! But even if it is only a matter of time before Section 377 is suitably and righteously repealed or amended, the fact of the matter is that homosexual people today are facing unfair and absolutely superfluous restrictions! There are some who will conform to the laws in place and others who won’t! Those who conform to the law will forever be branded as the victims of oppression, and those who don’t, will be branded criminals! Neither terms seem even mildly acceptable to me in the given context! The former needs no explanation, but do we really want even the tiniest community of our nation to be known as the oppressed?! As for the latter, it is sure to stir up quite a ruckus! Law-breakers are known as convicts, as criminals! They have committed not just a mistake as per that term, but a crime; a crime punishable by law! It’s like we’re trying to increase the crime rate of the nation, so that we can keep as many of the growing population as possible off the streets! But let me tell you one thing, if you’re trying to solve the traffic problems of the nation or something, there are far better ways to do it!



Unfortunately, I majorly stand by the Supreme Court's decision! If we allow the judges in OUR judicial system to overturn laws as and when they see fit, there'll be anarchy! The Supreme Court stated that the function of the courts in India is to uphold the law, not overturn it as and when they see fit. If a law is perceived to be outdated or void in the current period, then it would be the obligation of the Legislative bodies to bring up the same, discuss it, and pass or repeal appropriate laws. However, given the absolute efficiency of the Legislative system in place, and the very subjective nature of justice itself, I can't help but wish that judges could rule against existing laws at times, on a case by case basis. After all, "When the law does not uphold justice, the law is but a burden to society! What was once a protective barrier, is now a restrictive shackle!"