AUM
           SAME SEX RELATIONSHIP RECEIVES JUDICIAL BLESSING
                                 By Brigadier
Chitranjan Sawant,VSM
 
The same sex relationship between two consenting adults in the privacy of
bedroom in the state of Delhi is now protected by the High Court from
prosecution by police. A bench comprising the Chief Justice and a brother judge
has declared that section 377 Indian Penal Code violates  Articles 21, 14 and
15 of the Constitution of India as it infringes the rule of Equality before law.
As per a judgement of the Supreme Court of India delivered a few years ago, an
order of a High Court on a  piece of legislation that is promulgated throughout
the country, will be applicable to the rest of India too. Should there be a
judgement of another High Court at variance with the High Court concerned, the
case will be referred to the Supreme Court whose order will be final and binding
on all parts of India where the original legislation is applicable. It will be
pertinent to mention that in the state of Jammu and Kashmir, Ranbir Penal
Code(promulgated by His Highness
Maharaja Ranbir Singh) is applicable and not the IPC.
 
Their Lordships were of the opinion that the method of achieving sexual
satisfaction in the privacy of the bedroom is a private matter between two
consenting adults who may be of same sex and the government has no business to
interfere. Thus the said section of the statute book is rendered ineffective
partially by the order of the Delhi High Court delivered on 2 July 2009. The
Union Law Minister is reported to have said that an appropriate legislation
giving relief to the homosexuals may be brought before the Parliament subsequent
to consensus arrived at by the political parties, religious and cultural groups
and others who have been a party to the legal debate going on for almost a
decade. By the way, no political party of national standing wants to say
anything on the subject because the homosexuals are all adults and form a sort
of vote bank. Some influential groups are making an endeavour to shape public
opinion in favour of repealing, what they
call, an archaic law.
 
The influential religious and cultural groups have voiced strong opposition to
the said judgement of the Delhi High Court and have indicated that they would
prefer an appeal to the Supreme Court of India. The common man in rural India
who is equally affected by the new judicial order is blissfully ignorant of what
is going on in the national capital. That has been the way of life all along, I
guess. Surprisingly the Media, both print and electronics, has hailed the said
judgement as a historic one and has gone gaga over it. These days it is
considered fashionable to go with the queer people, their outlandish dress and
imported thought process and ignore the traditional values of life. It appears
that a few in the intelligentsia have monopolised the thought process of the
governing machinery. Another explanation offered is: most of the media men and
women are products of public schools that are wholly or partly residential. One
is given to understand that
the idea and practice of Man having Sex with Man – MSM – or woman having
sex with woman – WSW- is not frowned upon in some of the prestigious public
schools. Thus those who live in glass houses do not throw stones at others. Just
turn Nelson’s eye to an infringement of law when the bureaucrats and
intellectuals had themselves gone through the mill.
 
ALL ABOUT SECTION 377 IPC 
 
This section of the Indian Penal Code is listed under the heading, Unnatural
Offences. So, whatever is described hereafter is a part of the unnatural
behaviour of men and women that the code covers. The section says:
                  Whoever 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 years and shall also be liable to fine.
It was Lord Macaulay, the man notorious for making Indians Brown Sahibs through
English education, who had drafted the Indian Penal Code and had inserted the
relevant section in keeping with the morality prevalent in the then England. If
this plea of legal luminaries is accepted, it will mean that before 1871 when
the IPC became law governing crime and punishment, Indians did not consider
Homosexuality a criminal offence. This line of thought is preposterous. It
should not be allowed to go unchallenged. By and large, Marathas, Rajputs, Jats,
Mughals and Pathans ruled parts of India before they accepted the overlordship
of the British operated East India Company. Crime was not overlooked by the then
Indian rulers. One wonders why they would have condoned homosexuality when it
was forbidden in both the major religions professed then, that is,Hindu Dharma
and Islam. Christianity came to India thereafter and it too frowned upon this
major infringement of
moral code of conduct. Therefore, to say that the British rulers had
criminalised the offence of homosexuality and it should quit India since it is
no more a criminal offence in the UK will be a travesty of truth. In India today
most of the influential religious groups have spoken against homosexuality and
called it a sin, let alone a crime.
 
A  LOOK  AT  HIGH COURT  JUDGEMENT
 
The Hon’ble Chief Justice and his brother judge in their 105-page judgement
have taken pains to quote and analyse numerous judgements on Equality before Law
delivered by eminent judges in USA, UK and Europe. Their Lordships have
overlooked the dissimilarities in the mental make -up and cultural beliefs of
the Western and Indian societies. MSM and WSW may be prevalent on a large scale
in those countries and the meaning of Liberty to have sex the way you like will
be different from what is current in India. It is not only the factor of Law but
also the all important factor of Social recognition vis-a-vis social stigma.
When the entire social order, not only so-called intellectuals in coffee houses,
looks down upon MSM and WSW, how can the judiciary approve of  or rescind an
Act of Legislature on the strength of some judgements defining Jurisprudence and
Equality before Law that were delivered across seven seas taking account
morality of a foreign social
order. One wonders if it was love’s labour lost.
 
Their lordships have rightly quoted Pundit Jawaharlal Nehru, our First Prime
Minister, on the subject of human spirit. “Magic of words cannot convey magic
of human spirit and a nation’s passion”. Very well said and aptly quoted.
Likewise a nation soaked in Dharma cannot be asked to overlook a section of
society having sex against the order of nature, never mind if it is in the
privacy of a bedroom. Lord Macaulay drafted the entire Indian Penal Code in the
19th century and one cannot single out only section 377 and call it archaic.
Section 302IPC that deals with the offence of murder is equally old in terms of
time but it is still current. A crime is a crime, notwithstanding it being
committed within the four walls of the bedroom. An offence of murder committed
in the dungeon of a castle will be called MURDER, irrespective of the privacy of
the place. It will attract the attention of the investigative organs of the
government. Homosexuality , as of
now, is a crime even if it is protected by four walls of the bedroom.
 
Is a High Court competent to sit in judgement over the legality of a section of
the code enacted almost a century and a half ago? It would have been appropriate
if the bench had referred it to the Government of India to refer the matter to
the Legislature for a comprehensive review of the Indian Penal Code in the light
of experience gained over a period of time. As of now, the present judgement of
the Delhi High Court amounts to tinkering here and there. A piecemeal reform is
not in the interest of a healthy social order. The leaders of the society should
not miss the wood while counting trees.
 
Finally, a word about Their Lordships fixing age of adults for the purposes of
section 377IPC at 18. I concede that one is entitled to vote at 18. At the same
time, law requires a male to be 21 and female to be 18 to tie the knot and
become husband and wife. Sex is an important part of marriage for procreation
and the male partner must attain the age of 21 to have sex in wedlock and
procreate. In this judgement, the Delhi High Court has allowed two male adults
who have attained the age of 18 to have sex in the bedroom against the order of
nature. The age of adulthood for MSM or WSW should have been fixed at 21 in the
larger interest of persons concerned and the society at large.
 

The citizens who have good of the Indian society at heart will now look forward
to the judgement of the Supreme Court in this all important matter of
criminality or otherwise of consensual acts of adults who are 18 years of age
and above. May Parmatma grant us Medhavi Buddhi  or sagacious wisdom to view
the matter in correct perspective.
UPVAN, 609, Sector 29, NOIDA – 201303,INDIA  Mobile : 0091-9811173590
Phone : 0091-120-2454622.   Email – sawantg.chitranjan@...
 
 
 
 




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