Saturday, July 4, 2009


Damn… they made it. After continuous struggle of cases to cases, they overturned the old law of British period. A long 150 years of veiling period for gays become unveiled, the historical judgment given by the Delhi High Court marked a milestone in the country’s social progress. The judgment is a step towards the globalization of justice. The raucous change in the interpretation of ‘SECTION 377’ of the Indian Penal Code, it looks that the Indian Constitution became modern now and able to called as ‘21st century Constitution’. The acclaimed ruling decriminalizes the homosexuality and opened the wave of happiness for the LGBTs (Lesbians, Gays, Bisexuals and transgenders). Now the 2nd of July will be known as “India’s Gay Day”, Kudos for the achievement that made India as a modern country following the principles of ‘Globalized modernity’.
There are some misconceptions about the ruling given by the Delhi high court:
1) The court has not struck off the section 377 of IPC, but it has read it down so that it no longer applies to private homosexual acts undertaken by the consenting adults.
2) The Section 377 will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minor. It is striking that if the sex is non-consensual then it termed as a ‘Rape’, and ‘Rape’ is already govern under the Section 375 of IPC, then what is the use of Section 377? The Indian rape law only governs peno-vaginal rape, so non-vaginal rape is not covered by the rape laws and under this only woman and girl can be a victim of rape, leaving no protection for men and boys. So under section 377 this could be covered.
3) Whether the Judgment could be applied to the whole India or not? Yes, the ruling will be applicable to the whole of India, in view of Supreme Court’s Judgment in Kusum Ingots v. Union of India case in 2004.
4) On the question of justification of a restriction of article 21 (personal liberty), the court draws the crucial distinction between the popular morality and the constitutional morality.
“The popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21. Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong. If there is any type of “morality” that can pass the test of compelling state interest, it must be “constitutional” morality and not public morality. This aspect of constitutional morality was strongly insisted upon by Dr. Ambedkar in the Constituent Assembly.”
If a law is violative of the constitutional morality (i.e. principles of liberty, equality, tolerance etc.), it would be struck down regardless of whether or not it conformed to popular morality.
However many of the religious and non-religious leaders opposed this ruling and regarded it as against the moral, cultural and religious values of the masses. It will be difficult to have a consensus societal as it has been widely retorted. Certain things in society is based on majoritarian thinking, if the majority approve certain act as a valid and rightful then it become a legitimate in the eyes of popular morality or public consensus, otherwise it become a perverted thing and the person who follows it as a abnormal or Psychologically ill.
Though I also don’t approve this unnatural relationship, but I don’t term it as a crime. I don’t have any problem of decriminalizing it but it shouldn’t be legalized. Contradictory……, I mean to say the marriage between same sexes should not get legal status, it is better to acknowledge it as a null or void marriage, the marriage should be prohibited, although the act of homosexuality should not be treated as legal crime.


Emaan said...

doom'd day is close buddy ! to each his own, but even i don't agree with the legalisation of gay marriages.

~ manish ~ said...

It is indeed a thing to cheer if we look at the torture they had undergone, both physical n mental, especially the trans-genders and sex workers.

If it doesn't stop their harassment by police officials and others in the society, then it would be just another line in the IPC, like many of our laws.