Almost as soon as I wrote In India, Rape is Legal but Sex is Not, I was slightly disappointed in it. I was happy with my reaction to the news articles, but unhappy with my conclusion. I felt that it was incomplete.
Shortly after I wrote my post, I read Bhagwad Jal Park's post in which he stated that he wanted to find a copy of the Supreme Court (SC) decision. Through a quick search on Google, I found this. I thought that I should read it and then comment on it.
I also read additional and newer news articles about the Supreme Court decision. I thought that I should mention and discuss them.
With these three things, I hope to write if not a better then another and informative post about this important topic.
Needless to say, there were many newspaper articles that came out after the decision was made. Some of them focused on the act (What is "unnatural"? What is "against the order of nature"?); others focused on the individuals (Being gay was now illegal; and everybody was now a criminal). Some of the best articles were Supreme Court leaves door open for LGBTs Section 377: A 19th century law at odds with ground reality Judge who decriminalized gay sex disappointed with SC order Oral or anal sex too makes you a criminal. Perhaps the most erudite and authoritative was A mother and a judge speaks out on section 377.
Needless to say, there were many newspaper articles that came out after the decision was made. Some of them focused on the act (What is "unnatural"? What is "against the order of nature"?); others focused on the individuals (Being gay was now illegal; and everybody was now a criminal). Some of the best articles were Supreme Court leaves door open for LGBTs Section 377: A 19th century law at odds with ground reality Judge who decriminalized gay sex disappointed with SC order Oral or anal sex too makes you a criminal. Perhaps the most erudite and authoritative was A mother and a judge speaks out on section 377.
I then read the decision of the SC. It was a summary of the arguments of the Respondents (NAZ Foundation and others) and Appellants (Suresh Kumar Koushal and another). I discerned that there were some weak arguments (primarily made by the Appellants--perhaps counter-intuitively, as they were the winning side) and some strong arguments (primarily made by the Respondents--perhaps counter-intuitively, as they were the losing side).
The Appellants said that HIV prevalence was higher among homosexual men and that it is a small minority. ???????????????? If the prevalence of crime is higher among poor people then would the SC outlaw poor people? Victims of attempted murder are a small minority. Would the SC obliterate the rights of these victims simply because they are a small minority? It is hard to believe that such things are believed and written by purportedly intelligent people.
They also stated that "What is pre-ordained by nature has to be protected". ?????????????? What is "pre-ordained"? If having five toes on each foot were "pre-ordained" then would people having six toes on each foot not be protected? If it is "pre-ordained" that we travel using our own energy and effort then would airplanes be outlawed?
It was also stated that "So long as the law stands on the statute book there was a constitutional presumtion in its favour". ???????????????? The perpetuation of ignorance. Furthermore, that is not at all really true. In the United States, the 18th Amendment to the Constitution, prohibiting the manufacture and sale of alcohol with the U.S. was repealed barely 15 years after its enactment.
The decision seemed to return to this topic frequently. They always averred that there was a presumption of constitutionality in section 377. This was scary to me. Sodomy was a crime, so should it continue to be a crime? In the United States, slavery used to be legal. Does that mean it should continue to be legal? The respondents seemed to be saying that you can't throw out the baby with the bath water.
The Respondents did say that section 377 took away the self-respect and dignity of people. This seemed a somewhat weak argument. Later on in the decision, it seemed as if they had backed up their assertion with legal cases. However, I felt that this issue was not really germane to this case.
In terms of strong arguments, the Respondents said that section 377 is ambiguous and vague, which it certainly is. The whole of it is the following:
377. Unnatural offences--Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten year, and shall also be liable to fine.
Explanantion-Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
which can be found here on page 168.
They went on to say that the section was "based on traditional Judeo-Christian moral and ethical standards that are not justified in contemporary Indian society and do not resonate with the historically held values in Indian society concerning sexual relations".
The Appellants did bring up several legal cases, including Lawrence v. Texas in the United States, stating that "promotion of majoritarian sexual morality was a legitimate state interest". But just because the U.S. SC are morons should not mean that the Indian SC be the same. I do not think that this was necessarily a strong argument, although I do concede that "What is good for the goose is good for the gander". Moreover, the idea of "majoritarian sexual morality" was reiterated.
I now confess that I am an idiot.
Or maybe I am not. Or maybe I am too stupid to realize that I am stupid.
Regardless, I had great difficulty in following the decision. Again, it was a summary of the arguments of the Respondents and Appellants. I expected to read the decision and rationale of the judgement at the end, but it never seemed to come.
If I had written the decision then I would have written it in one of two ways: 1) the arguments for the Respondents, and then those for the Appellants (or perhaps vice versa) and then the final decision; 2) an argument for the for the Respondent, then the counter-argument of the Appellant, then the SC views on that issue, until all the issues had been discussed.
Unfortunately, neither of these options was followed or, at least, not followed well. I then wrote to Bhagwad (see link above) to tell him of my situation. He apparently was able to discern the decision far better than I could, and he told me that he had even written another post about it. The SC decision now seems to have been written in a third manner: that of interspersing arguments and decisions here and there. I still do not fully grasp everything that was written in the decision but I am now relying on Bhagwad's rendering of the decision.
It seems that the SC swallowed many of the weak arguments of the Appellants. (Is this act, itself, "against the order of nature"?) In addition to mentioning some things that I have alluded to here, Bhagwad provides a passage in which the SC states that
It is relevant to mention here that the Section 377 IPC [Indian Penal Code] does not criminalize a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation.
??????????????? Does this mean that eating meat can be a crime, but being non-vegetarian is not a crime? More pertinent to the issue: Does this mean that homosexual sex (purportedly "against the law of nature") can be a crime but being homosexual is not? But then, who commits homosexual sex?
Ever since I was aware of this case, I wondered about the conflict between section 377 and the Indian Constitution (especially Articles 14, 15 and 21) and what rationale would be used for the promotion of one over the other.
Bhagwad indicates that the SC did touch upon this topic in this passage
43. While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a miniscule fraction of the country's population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.
The proposition may be correct, but it can not be accepted. Even if it is accepted then the conclusion does not necessarily follow from it as there are many reasons why the section contravenes the Consititution, and many reasons why the Constitution should be upheld in this case.
I think that what I wanted to state in (or simply add to) my earlier post is that I do not believe in LGBT rights. I do not believe in rights for those with disabilities. I do not believe in women's rights. I do not believe in patient's rights. I do not believe in rights to education. I do not believe in minority rights. I believe in human rights. If you treat humans as humans then everything else will be taken care of.
I only wish that the SC believed this, and it is my hope that the government will believe in this sometime during my lifetime.
The Appellants said that HIV prevalence was higher among homosexual men and that it is a small minority. ???????????????? If the prevalence of crime is higher among poor people then would the SC outlaw poor people? Victims of attempted murder are a small minority. Would the SC obliterate the rights of these victims simply because they are a small minority? It is hard to believe that such things are believed and written by purportedly intelligent people.
They also stated that "What is pre-ordained by nature has to be protected". ?????????????? What is "pre-ordained"? If having five toes on each foot were "pre-ordained" then would people having six toes on each foot not be protected? If it is "pre-ordained" that we travel using our own energy and effort then would airplanes be outlawed?
It was also stated that "So long as the law stands on the statute book there was a constitutional presumtion in its favour". ???????????????? The perpetuation of ignorance. Furthermore, that is not at all really true. In the United States, the 18th Amendment to the Constitution, prohibiting the manufacture and sale of alcohol with the U.S. was repealed barely 15 years after its enactment.
The decision seemed to return to this topic frequently. They always averred that there was a presumption of constitutionality in section 377. This was scary to me. Sodomy was a crime, so should it continue to be a crime? In the United States, slavery used to be legal. Does that mean it should continue to be legal? The respondents seemed to be saying that you can't throw out the baby with the bath water.
The Respondents did say that section 377 took away the self-respect and dignity of people. This seemed a somewhat weak argument. Later on in the decision, it seemed as if they had backed up their assertion with legal cases. However, I felt that this issue was not really germane to this case.
In terms of strong arguments, the Respondents said that section 377 is ambiguous and vague, which it certainly is. The whole of it is the following:
377. Unnatural offences--Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten year, and shall also be liable to fine.
Explanantion-Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
which can be found here on page 168.
They went on to say that the section was "based on traditional Judeo-Christian moral and ethical standards that are not justified in contemporary Indian society and do not resonate with the historically held values in Indian society concerning sexual relations".
The Appellants did bring up several legal cases, including Lawrence v. Texas in the United States, stating that "promotion of majoritarian sexual morality was a legitimate state interest". But just because the U.S. SC are morons should not mean that the Indian SC be the same. I do not think that this was necessarily a strong argument, although I do concede that "What is good for the goose is good for the gander". Moreover, the idea of "majoritarian sexual morality" was reiterated.
I now confess that I am an idiot.
Or maybe I am not. Or maybe I am too stupid to realize that I am stupid.
Regardless, I had great difficulty in following the decision. Again, it was a summary of the arguments of the Respondents and Appellants. I expected to read the decision and rationale of the judgement at the end, but it never seemed to come.
If I had written the decision then I would have written it in one of two ways: 1) the arguments for the Respondents, and then those for the Appellants (or perhaps vice versa) and then the final decision; 2) an argument for the for the Respondent, then the counter-argument of the Appellant, then the SC views on that issue, until all the issues had been discussed.
Unfortunately, neither of these options was followed or, at least, not followed well. I then wrote to Bhagwad (see link above) to tell him of my situation. He apparently was able to discern the decision far better than I could, and he told me that he had even written another post about it. The SC decision now seems to have been written in a third manner: that of interspersing arguments and decisions here and there. I still do not fully grasp everything that was written in the decision but I am now relying on Bhagwad's rendering of the decision.
It seems that the SC swallowed many of the weak arguments of the Appellants. (Is this act, itself, "against the order of nature"?) In addition to mentioning some things that I have alluded to here, Bhagwad provides a passage in which the SC states that
It is relevant to mention here that the Section 377 IPC [Indian Penal Code] does not criminalize a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation.
??????????????? Does this mean that eating meat can be a crime, but being non-vegetarian is not a crime? More pertinent to the issue: Does this mean that homosexual sex (purportedly "against the law of nature") can be a crime but being homosexual is not? But then, who commits homosexual sex?
Ever since I was aware of this case, I wondered about the conflict between section 377 and the Indian Constitution (especially Articles 14, 15 and 21) and what rationale would be used for the promotion of one over the other.
Bhagwad indicates that the SC did touch upon this topic in this passage
43. While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a miniscule fraction of the country's population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.
The proposition may be correct, but it can not be accepted. Even if it is accepted then the conclusion does not necessarily follow from it as there are many reasons why the section contravenes the Consititution, and many reasons why the Constitution should be upheld in this case.
I think that what I wanted to state in (or simply add to) my earlier post is that I do not believe in LGBT rights. I do not believe in rights for those with disabilities. I do not believe in women's rights. I do not believe in patient's rights. I do not believe in rights to education. I do not believe in minority rights. I believe in human rights. If you treat humans as humans then everything else will be taken care of.
I only wish that the SC believed this, and it is my hope that the government will believe in this sometime during my lifetime.