Gaysi: The Gay Desi - Yes, we're legal!

Sumant Srivathsan talks about the good, the bad and the missing.

The HC ruling states that it will be used to govern laws pertaining to non-consensual unnatural sexual activity involving both adults and minors. This is the first major stumbling block on the road to a truly progressive assessment of gay rights. In order to achieve a truly level playing field, it is critical that sexual partnerships and behaviours involving same-sex couples be treated identically to those between heterosexual couples. In other words, if a man rapes another man, the law governing the act should be no different from the one that applies when a man rapes a woman. In the same token, there should be no difference in statutory rape law based on the victim’s gender. To use a different IPC section to address same-sex rape is to continue to condone the belief that homosexual and heterosexual relationships are different in the eyes of the law.

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[A special thanks to Guest Author, Jane Doe, for explaining the bottom line of what the recent High Court just decided.]

“From a positivistic point of view, equality is antithetic to arbitrariness”.

- E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3

I am over the moon about the judgement. This is brilliant not only because it gives gay people (men specifically), the right to love (& fuck) who they want. And takes it out of the purview of the state. But also, because I have faith in our constitution and the protection it extends to its citizens. This is now a victory for not only India’s LGBT community, but it also reiterates the supremacy of Articles 14, 15 and the favourite of many- Article 21. (19 we already had). 3 cheers to all those at Naz.

Broom asked me to do a post on the legal implications of Naz Foundation v. Government of NCT of Delhi & Ors. (WP(C) No.7455/2001). I did read the entire judgement and will not launch into an elaborate discussion on the merits of the judgment. I’ll try to be as brief as possible (it’s a 105 page decision after all).

Now, I’ve been reading a lot of blogs and there’s been lots of discussion about the judgement and also for a long time now, Section 377. Being a member of the much hated legal brethren there are a few points/contentions/doubts/statements I’d like to clarify.

Issue #1: Applicability of the judgement/ Jurisdictional aspect (of the Delhi High Court): Per se, the judgement of a High Court (or any lower court for that matter), does not lay down the law in any other state not within the jurisdiction of that specific High Court. However, the situation at hand is unique and the substance of the case, unprecedented. In 2004, the Supreme Court held in the case of Kusum Ingots v. Union of India

An order passed on writ petition questioning the constitutionality of a Parliamentary Act, whether interim or final, will have effect throughout the territory of India subject of course to the applicability of the Act. Thus in the present matter, the constitutionality of Section 377 of the Indian Penal Code was challenged in a writ petition before the Delhi High Court. The IPC also has nationwide applicability (except J&K) and therefore this judgement will apply all over.

Another side to this is the fact that this is an unprecedented issue. There have been cases in various courts all over the country wherein individuals have been prosecuted by the state. (That was one of the grounds on which the HC dismissed the petition the petition in the first place. The HC held that the petitioners in this matter were not interested parties (i.e. – had not been affected directly by the law) and the HC would not entertain petitions of such academic interest.) The petitioners (Naz Foundation) then took the matter to the Supreme Court which directed the HC to reconsider the matter. So there is no other judgement on the matter. Thus in the absence of any other conflicting judgement from any of the other High courts in the country this judgement stands and is valid until an amendment to the section is brought about. Note that a complete repeal of the section is not possible as the section was enacted to penalize sodomy. Thus while consensual sex between members of the same sex is permitted, sodomy is not. The situation is now analogous to the difference between heterosexual intercourse and rape. So yes, as of now, it applies pan India.

There is also the worry that the Supreme Court may reverse the judgement. Personally, I don’t think there’s much likelihood of that. While that the SC has a predilection for controversial and sometimes absolutely ridiculous judgements, bear in mind that it was the SC that directed the HC to review the petition in the first place. Also this is an issue of Part IV of the Constitution (fundamental rights) and who better than the apex court to uphold this? So unless these fundamentalist jackasses decide to go ahead and file a whole new petition, I wouldn’t be too worried. Also any such petition if filed would remain sub judice for a long time and till then Naz would still be the settled position of law.

I was only asked to write something on issue 1, but like I’ve been posting everywhere, I’d like to make a few clarifications on the impugned Section 377 and its applicability.

Continue reading

Well we will find out today.

The much-awaited verdict on the eight-year-old public interest litigation (PIL) seeking decriminalization of homosexuality would finally be delivered by the Delhi High Court on Thursday.

The court would deliver its judgment at a time when the UPA government in its second term seems prepared to take a relook at the 19th century colonial law that treats homosexual activity as a crime. [Link]

As mentioned in the previous post, I highly doubt much benefit will come out of today’s hearing, simply because our authority figures are way too weak in the knees to face up any form of backslash from various religious groups, political parties and such like.

But as my good friend always says – Umeed par duniya kayam hai – so fingers crossed, people. And in case you are wondering, yes he is a human rights activist.

If you are living in India and words like free society, 21^st Century, democracy….mean next to nothing. But what does stay, and kicks us hard up in the arse is a 150 year old IPC Act – 377. No…nah it doesn’t matter at all if the Brits who originally handed us this tragedy of an ACT have themselves long forgotten about it, we Indians continue ahead with the loyalty program. Ah! Such is our love for them and the desi-gays can continue to rot in hell jail.

In case you are wondering why I am in such a glorious mood, here is the gem of a reason…

Health Minister Ghulam Nabi Azad said there was need for debate and consensus. “I can simply say that there should be more debate — public debate, Parliament debate. There has to be a consensus. The negative and positive has to be evaluated and then a conclusion should be evolved,” Azad said.

“Not only the Government but other political parties should also be in line with it. If you are going to be bringing in a legislation of this nature, there has to be a broad consensus,” he said. Azad said while certain issues were related to the country’s culture, others pertained to diseases associated with homosexuality. “There should be a general debate where our heritage as well as diseases are considered,” he said. [Link]

Debate, ya rite, which in simple words means “Me, my party members, your government…collectively are bunch of good for nothing morons. We rather suck up to the filth that goes around in the name of religion, culture, heritage, values…then allow some folks their basic human rights. So go on suckers, wait another 150 years”.

Sorry call me a pessimist but I don’t see no light at the end of this shit-hole tunnel.