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Three Queers For India’s Judiciary

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Three Queers For India’s Judiciary

A trio of recent decisions from the country’s higher courts puts a nagging question-mark on the “progressive” reputation that its judiciary has acquired with the Delhi High Court’s July judgment decriminalizing gay sex.


Shekhar Hattangadi

Ever since the Delhi High Court “overturned” a 147-year-old colonial relic of a law that punished consensual homosexual acts with a prison sentence, gay-rights activists are ecstatic. That’s understandable. They have suffered through a long and tortuous legal expedition. The verdict has been welcomed in many other circles across India and the world. That’s understandable, too. Any right-thinking person would sympathize with a minority’s legitimate demand for freedom against discrimination and social ridicule, and would support its fight in court.
But are we, in the process, making a mountain out of the proverbial mole-hill? If you went by the all-round media hype that attended the culmination of Delhi HC’s Naz Foundation v Union of India case — including the approbation “Gay Ho!” in the August issue of this magazine — you could be forgiven for believing that India is on the verge of commemorating the day (July 2) on which it became the world’s 127th country to decriminalize same-sex fornication.

The Naz Foundation judgment has been viewed, rather hastily, as proof of the increasingly progressive outlook of the Indian judiciary. Before we look at three other recent judgments which fly against this claim, let us look at Naz Foundation itself.

Historic though it may be, the judgment does not overturn or repeal in any way Section 377 of the Indian Penal Code, as some would have us believe. The section states: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished…..” By excising from that section, prohibitions against consensual non-vaginal sexual intercourse in privacy, the Court has merely decriminalized private homosexual acts as well as anal sex between heterosexuals. Nothing more. Outside of such acts, the meaning of “order of nature” is still not explicitly clear. Section 377 continues to apply—as it should—in cases of sex involving minors and coercive homosexual acts. And cases already decided on its basis will not be reopened.

That apart, the judgment has spawned confusion over the age of consent for sex. It has pegged the consent age under the Act at 18—a full two years higher than that for heterosexuals (as per Section 375 of IPC) indulging in what is commonly understood as man-woman love-making. As per the judgment, a girl with a healthy heterosexual appetite may have normal sex with a man on her 16th birthday, but will have to wait till she is all of 18 before having anal sex with him—that is, if she wishes to stay on the right side of this puzzling law and spare her partner a stiff prison term. The Court, mindful of the confusion it has itself created, wants an amendment by Parliament to set it right. Outside court, this is known as passing the buck.

Fundamental Rights, guaranteed by the Indian Constitution, form the basis of the 105-page-long judgment’s judicial reasoning. Naz Foundation turns, in the main, on interpretations of Article 21 (protection of life and personal liberty), Article 14 (equality before law), and Article 15 (protection against discrimination). While the Court’s interpretations of the first two are reasonable and therefore acceptable without debate, it has imposed much too broad a construction on Article 15. The Article prohibits discrimination on grounds of “religion, race, caste, sex or place of birth.” The relevant word here is “sex” and would ordinarily — and in this context too, given the accompanying words — stand to mean “gender”. Did the Court — unwittingly or deliberately — fall into the linguistic trap of confusing the two meanings, and thus misconstrue “sex” to mean “sexual preference”?

More confusion plagues the geographical application of the Naz Foundation judgment. While there are several precedents restricting a High Court’s writ to the territorial borders of the state, at least one other judgment from the Supreme Court has held that an order passed by any High Court questioning the constitutionality of a parliamentary Act would have effect throughout India.

Real-world implementation of the Naz Foundation judgment — and its acceptance in a society that’s thoroughly hypocritical on sexual matters — would be no less problematic. Sources in the armed forces are emphatic that no homosexual activity would be tolerated within its ranks. The reasoning? Soldiers living for long periods in remote areas would face inter-personal problems if same-sex relationships develop among them. Offenders are liable to be court-martialled for “unbecoming conduct” and “disgraceful conduct of a cruel, indecent or unnatural kind.”

India’s federal government is faced with inter-ministry conflicts, and depends on a smooth cooperative interaction among three ministries—Home, Law, and Health—to implement the court decision effectively. Meanwhile, a key ally of the ruling Congress Party, Laloo Prasad Yadav—a former cabinet minister who continues as coalition partner—has thrown a spanner in the works calling homosexuality a “crime” and opposing its legalization “at any cost.”

Yadav may have picked up his cue from the Delhi High Court itself. Twice in two years—in September 2002 and again in November 2004—the Court, which has now been thrust with the greatness of creating history on the lines of the Roe v Wade decision of the US Supreme Court leagalizing abortion, had rejected pleas seeking to legitimize homosexuality. Even in its present dispensation, the Court’s judgment in the Naz Foundation case hardly atones for some truly astonishing verdicts on personal freedom from the country’s higher courts.

When Mohammad Salim, a student at Nirmala Convent School in Madhya Pradesh, decided to let his newly sprouted beard grow, the school administration forced him to leave citing a regulation mandating clean-shaven chins. Salim sued, invoking his “religious conscience, belief and family custom.” Ruling in favour of the school’s decision and observing that neither secularism nor religious freedom could be overstretched, Supreme Court Justice Markandeya Katju said: “We don’t want to have Talibans in the country.” He later apologized, but not before his Court had effectively equated all beards with fundamentalism and terrorism, and thus associated the likes of Maulana Azad, Baba Ramdev, Osho Rajneesh and even the Hindutva ideologue Guru Golwalkar — not to mention Katju’s brother-judge Bilal Nazki of the Bombay High Court — with Taliban functionaries!

Katju again was part of the Supreme Court Bench that upheld the decision of state-owned Indian Airlines to terminate the services of an air steward Joynath Victor De for refusing to trim his extra-long moustache. Ironical isn’t it, that India’s state-owned international airline proudly displays its mascot — the Air India Maharaja, whose whiskers stretch well beyond his cheeks to match his over-sized turban and footwear — while its domestic carrier will not tolerate an employee sporting a similar moustache.

Equally perplexing is the case of a Sikh girl Gurleen Kaur who was denied admission into her minority community’s medical college, run by the Shiromani Gurudwara Prabandhak Committee. The SGPC high-priests noticed her plucked eyebrows, and concluded that Kaur was not “a true Sikh” as she had violated a fundamental tenet of the Sikh religion. The Punjab and Haryana High Court agreed that unshorn hair was an essential component of Sikhism, and ruled that the SGPC honchos were justified in their exclusionary act. In the process, the court has deferred totally and abjectly to a section (albeit powerful) of the Sikh priesthood–in this case, the SGPC–in determining the true adherents of the Sikh faith.

What gives the SGPC the exclusive right to decide on who is a true or untrue Sikh? We all know how deeply the Sikh community in India is riven with social, religious and political differences among its various parochial and provincial groups with disparate customs. Even the SGPC itself has its share of internal dissent.

Furthermore, how reasonable is it to insist that a woman with unwanted facial hair should walk around with all that growth because the SGPC high-priests insist on an unshorn(unkempt?) appearance as a qualification for true Sikhism? Inded a large number of modern medical procedures (particularly invasive surgeries) entail shaving of the skin surface above the affected part/organ as a prerequisite to surgery. Does this mean that every Sikh who has gone through such a procedure forfeits her social and religious identity as a Sikh? To what ridiculous extent are we going to take this so-called essential requirement of religious purity?

Should the above cases be considered stray and out-of-character decisions from the upper echelons of India’s respected judiciary, then so is the Naz Foundation verdict? After all, it’s an idiomatic truth that it takes more than one swallow to herald summer.


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Written by gaybombay

September 17, 2009 at 9:59 am

Posted in Uncategorized

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