Liberal India will not accept the SC verdict, we are not against LGBTs

Published: December 18, 2013

Society is much more open to accepting the LGBT community than before, despite countless taboos existing even today. PHOTO: AFP

Shehla Rashid cuts a lonely figure in the crowd of the gay, lesbian, bisexual and transgender (LGBT) community at Delhi’s protest street popularly known as Jantar Mantar. A student of sociology in a leading university in the capital and an activist fighting for the cause of women and minorities, Rashid has come to express solidarity with the gay community who are outraged over the judgement of the Supreme Court that has criminalised same sex alliance.

The young student feels angry that the apex court has lost a historical opportunity to give the sexual minority their due rights under the constitution.

“The judgement has taken us several decades back. The feminist movement is fighting against exclusion, patriarchy, discrimination and violence. The judgement exposes the LGBT to that. The apex court cannot shy away from deciding issues related to fundamental rights. Leaving such a crucial question to the goodwill of parliamentarians, many of whom are not trained in human rights, exposes the gay community to the immense risk of discrimination”, feels the agitated student.

Rashid is not alone in sharing this feeling of angst against the verdict, which many call an attack, not only on the freedom of the gay community but also on all kinds of minorities that feel threatened by the majoritarian agenda that seems to dominate public discourse.

India’s highest court of justice reversed a four-year-old verdict of the Delhi High Court that had legalised gay relationship by diluting section 377, which makes same sex alliance criminal.

The bold decision of the lower court gave the community a legal respectability which was denied to them for many years. By reversing the 2009 judgement, however, the Supreme Court has made the community a legal pariah and emboldened the conservative elements in the society.

The India of 2013, however, is unwilling to accept such a parochial judgement, even if come from the highest court of justice in the country. In liberal India’s mind, the court is supposed to act as a conscience keeper of society and upholder of individual freedom and liberty, a duty it seems to have forgotten.

The courts have to realise that the gay community is not alone in their fight and this was seen only a few hours after the verdict, when cross sections of the society came out onto the streets to protest the judgement.

Generally shy and reserved, hundreds of members from the LGBT community descended onto the streets of Delhi to protest against what they call discrimination and injustice done to them by the court.

“The judgement is a deep betrayal of the fundamental constitutional promise that the dignity of all citizens would be recognised and that equal treatment is a non-negotiable element of the world’s largest democracy”, says Arvind Narayan of Alternative Law Forum, one of the petitioners in the case fighting for LGBT rights.

Giving chorus to the protests were civil society activists and several women’s rights groups indicating, in concrete terms, that the fight of the sexual minority is not an isolated one but is linked to the wider cause of individual freedom. What they protest against is the parochial mindset that may exist in the society.

For the first time in India, after sensing the strong sentiments being displayed by the liberal sections of society, Congress came out openly in support of the gay rights.

The party chief, Sonia Gandhi, expressed disappointment over the court’s ruling and vowed to explore legislative options to correct the wrongs done to the gay community. Senior ministers of the central government also expressed unhappiness over the court’s ruling and vowed to find alternative legislative routes to legalise gay relationships.

On the other hand, the Hindu right wing organisation, the Bharatiya Janata Party (BJP) opposed any move to legalise gay marriages and upheld the court’s order. The party’s president, Rajnath Singh, termed gay relationships unnatural and opposed any legislative sanctity to the LGBT community.

Different political opinions on this issue show how the country stands polarised on the subject. The debate around this issue mirrors the deep cleavage that exists on the issue of minority rights and the majoritarian agenda.

Social commentator and political scientist, Pratap Bhanu Mehta, wrote in the Indian Express,

“Does it befit a liberal democracy to criminalise homosexual activity between consenting adults? Does it befit it to be hostage to an archaic concept of ‘natural’? Is the criminalisation not an infringement of every value we hold dear: liberty, equality, privacy, the right to life? In this sense, the case is not about gay rights. It is about all of us. It is also about the fact that in a decent society, no one, no matter how small a minority, should be targeted for simply being who they are. The court has, in some literal sense, infringed on the dignity of innocent citizens who just want, like everyone, the right and space to be themselves. To deny them that space is not to uphold some order of nature or a moral value or some tradition. It is simply to let prejudice masquerade as law.”

The open hostility to the court’s verdict is an indication of the changing attitude of society. Patriarchy and the old mindset have come to be challenged in the country, especially after last year’s Delhi gang rape case.

Prejudices of all kinds, societal and legal, against women and deprived sections are being questioned by people all over India. Large scale demonstrations forced the political class to strengthen laws protecting women from any kind of violence and discrimination. The Delhi rape protests succeeded in making women issues top priority.

Today gay rights and freedom are not seen as any different from the protests for the protection of women’s rights. Society is much more open to accepting the LGBT community than before, despite countless taboos existing even today. The metropolitan class of society has had no issues accepting the gay community as friends, colleagues and partners; and this is a reality that the Supreme Court has failed to recognise.

This ruling is seen by many as an attempt by the courts to turn a blind eye towards the obvious changes in societal values. It is taken to be an attack on the evolution of a liberal and modern society where all kinds of religious and sexual minorities enjoy equal freedom.

Liberal India is protesting today, not for gay rights but for the cause of a democracy where everyone is equal and the constitution recognises every individual’s liberty and freedom.

sanjay.kumar

Sanjay Kumar

A New Delhi based broadcast journalist who reports on national and international affairs. He is a contributor to the Asia Pacific based magazine, The Diplomat. He tweets as @destinydefier (twitter.com/destinydefier)

The views expressed by the writer and the reader comments do not necessarily reflect the views and policies of The Express Tribune.

  • Sid

    Sexual orientation is a personal affair and not a state affair. It is no one’s business to mind or oppose sexual lifestyle of anyone. Social rules are for betterment of society and should not be created to suppress people’s liberty and freedom. Democracy does not state that laws are different for gays and lesbians, they should therefore not be devoid of any freedom enjoyed by straight people.
    Supreme Court judgement is itself anti constitutional. It is against the spirit of Democracy. I wish this decision is reversed.Recommend

  • abhi345

    How did u get permission to write this column in a strict country.amazing!!Recommend

  • Ahmed

    The next step is the legality of incest, then bestiality. Afterall if the siblings are 1)adults, 2)consenting and 3) not hurting anyone then why would that be wrong? Please start thinking and stop this unnatural behavior. Try to use reason with this aswell.Recommend

  • Ankit Singh

    why pakistan always find a modi or bjp basher journalist , LGBT community is against indian tradition & supreme court decision on sec 377 is correct…… what if author son today say papa i am gay , author liberal view will be competely change……… and ET better to author like M J AKBAR aur R Jagannathan……….Recommend

  • koshur_batta

    Pakistani’s are a conservative & regressive society. I don’t quite understand why you’d even wanna have you letter printed on a pakistani newspaper. Pakistani’s do not understand the concept of freedom of speech, liberty etc.Recommend

  • Balochi

    India will basically follow west in everything. Simple as that, even if it means dumping indian culture in the garbage.Recommend

  • Black Widow

    Basically homosexuality should not be a problem in india. As per a famous hindu spiritual leader, even some hindu deities were homosexuals and bore offspring (don’t know where from, but) due to it. Lord ayyappa was born out of vishnu and shiva.Recommend

  • mohd [email protected]

    First of all sir,we are not pakistan or a Islamic country,hence fight for such laws will continue……everybody should live his/her life the way they want…………..nut u should not write such articles in pakistanis newspaper when topic is against islam……….Recommend

  • abhi345

    Not everyone has dumped indian culture in my country. There are 1 billion of us. Here culture changes every 10 kms.Don’t even think of comparing india to pakistan. Here people who don’t believe in religion exist too .Recommend

  • anil

    @Sanjay Kumar

    ” the Hindu right wing organisation, the Bharatiya Janata Party (BJP) opposed any move to legalise gay marriages and upheld the court’s order. The party’s president, Rajnath Singh, termed gay relationships unnatural and opposed any legislative sanctity to the LGBT community”– Mr.Sanjay , why do you hide the full story ? An incomplete story is also considered as false and fabricated story.This PIL was given by 2 hard line religious organizations i.e. Jamatiislami (India branch) and a christian church of state of Odisha . To their tune , SC ordered this archaic verdict . After that other hardliners like RSS also supported it . So now it is our responsibility to shut the mouth of Jamat , church and RSS and Let them know that civil society won’t accept this verdict . Otherwise we will become next Arabia in near future.Recommend

  • Rakib

    Bestiality goes against animal rights. In case of incest there is the complication of Consanguinity in the event of couple having children. With gays that particular complication doesn’t arise. What is sought in India is not legality but prevention of criminalisation. If law says 10 years imprisonment for homosexuality & Court “reads down” the law by declaring that the punishment is non-operative it doesn’t mean Court is bestowing legality; it merely says it is no longer a criminal act. If it grants legality it would mean even gay marriage should be allowed, which is not the case here. Decriminalisation would mean end of police harassment, that’s all. That is my understanding but I welcome correction.Recommend

  • JJ

    The funniest thing is to find this piece in a Pakistan newspaper.
    Do you really expect anyone in Pak to understand the meaning of humanity?
    Can they ever understand that LGBTs have made amazing contribution to this world in every field and their sexual preference is nobody’s business?
    This is a country of regressive fundamentalists too set in their ways. They will need another 200 years to understand the meaning of this article.Recommend

  • JJ

    Why don’t you worry about saving Pakistani culture of terror, suicide bombings and corruption?Recommend

  • JJ

    beats me too mate!!! haha i can’t stop laughing…Recommend

  • Anshuman Tripathy

    Why did you feel the need to publish this in a Pakistani website when you know how strongly they feel about homosexuality.one’s sexual orientation is a personal matter and a human right which the state has no business controlling…BTW the supreme court judgement says that the Delhi High court was out of its jurisdiction in passing its own judgement and now the onus is on the Parliament to pass the bill decriminilazing homosexuality..Already the union Finance minster, the HRD minister and the Law minister have told that they will take firm steps to ensure that bill decriminalizing homosexuality will be passed in the parliament soon. The Congress party and the Aam Admi Party have rendered support to decriminalizing homosexuality, only the BJP have taken a stand against it which is very dissapointing. But I am sure the Bill will be passed in the not so distant future.Recommend

  • Ahab

    God!How many of Indians are infested in ET blogs..My dear Indian friends, you can never be a superpower or even Asia power or even a South Asia Power if all you do is keep competing with your neighbors and act like immature lil kids fightin in the dirt. Dont compare everything of yours with ours. We have got our own mindset, culture, complexities and our own issues, that’s our mess, Let us solve our`s. Worry about your own mess.
    Not trying to be a buzz kill, but first sort out your issues on earth (i.e. Sanitary, Slum neighborhoods, class divide, Mao rebels..) and then perhaps reach out for space.Recommend

  • mimi sur

    Request you not to teach us our culture . We know what is our culture more than you .Recommend

  • Hera Iftikhar

    To all those having an issue with this being posted in pakistani newspaper…there is nothing wrong with having an opinion about something Indian related. stop being so ridiculous. A large part of Pakistani society is gay just so you know. Its sad that we are regarded as a society where someone’s sexual orientation is such an issue.

    Secondly, I have alot of Indian friends and I have friends who are gay. Its their choice. Just because I dont agree,with arguments based on science and the laws of nature, doesnt mean I dont respect their opinion and their right to CHOOSE. Indian is not Pakistan. I think everyone has their right to choose and that should not be taken away. Whether they are born that way or they make a choice, its on them. The State should not have a say in what is done in privacy of one’s relationship with their lover. The State should not be allowed to CRIMINALIZE one’s need to love. In a country where rape is such a huge problem, India seems to be more concerned with consenting individuals than doing something about the criminals that walk around forcing themselves on defenseless individuals. The court needs to get their priorities right.

    I highly commend you for publishing this article. It doesnt matter if you are Indian or not. And I apologize in advance for the ignorant and indecent responses most Pakistani’s will post here. There are some of us who dont think in a small box.Recommend

  • Lalit

    its booming nonetheless.Recommend

  • Ahsan Raza

    Yes Indian Supreme Court is quite right.. Indian govt cant curb poverty, can’t stop rapists, cant stop corruption .. but still its government’s job to decide and check where two consenting adults are entering their penises.. It would be much better if she puts micro cameras on it.Recommend

  • Rakib

    The famous “Hindu spiritual leader” may be gently oversimplifying matters to explain it to the laity or he may be a literalist. Indian (Hindu-Jain-Buddhist) iconography and hagiography is both intricate & intriguing. The allegorical nature of mythology has to be understood before jumping to simplistic conclusions. A good place to begin would be the amazingly insightful concept of “ardhnarishwara”-the male/female principle (like Yin & Yang of the Chinese)-made up of contrasting but complementary forces that create a synergy in which the whole is greater than the parts. That synergy in case of the example given by you has to be understood in its intended metaphysical way that is beyond physical perception. (p.s. correction is most welcome)..Recommend

  • Rakib

    BJP is the Party that is Protector, Preserver and Promoter of Hindutva-Cultural Nationalism of Hindus. Its parent body RSS is a premier Hindu Cultural Organisation. They are against homosexuality & consider it an unnatural act. Great Yoga gurus like Ramdev Baba & pontiffs of various sects also consider it against nature. Muslim Clergy & Catholic Priests are extremely antagonistic & call it an abomination. Those religious Orders that emphasise celibacy for their ordained monks are particularly touchy about it due to vulnerability. Yes, homosexuality is against Indian Culture. That doesn’t make these fossils, the religious zealots, right of course.Recommend

  • hamza

    sure, just like our country is obsessed with saudi culture and everything originally from the subcontinent is getting lost day by day.Recommend

  • grandmasti

    Correct,not sure why this Indian sanjay kumar did choose to publish this article in pakistani newspaper..I m amazed at ET..Et represents secular pakistan but majority’s views r other way aroundRecommend

  • Noman Ansari

    This makes no sense. Bestiality is between a human and an animal, and animals are too innocent/lack intelligence to make a sound decision.

    Incest has well documented cases of offspring suffering from genetic defects. I have gay friends and it is obviously not a choice for them to be gay.Recommend

  • Anooop

    Sculptures depicting people of same sex having intercourse are found in an ancient Temple in India.

    Sex is not a Sin in Indian culture. A thousand years of foreign culture’s rule has skewed.

    In terms of openness to sex, which the West is practicing lately, it was practiced in India thousands of years ago.

    India is and should always be the land of Kamasutra. One upon a time Pakistan too was part of such a land.Recommend

  • Anooop

    I really wish the present Govt pushes in a law, which fixes this grave error. Ordinance can be challenged in the Courts.

    India is the land of Kamasutra. While Sex is a sin in foreign cultures, in India, it is celebrated and considered a divine act.

    Mughal rule, followed by the British rule, has deeply scarred Indian culture, so much so that a Victorian era rule is upheld by the Supreme Court of India, in which many Indians trusted to deliver justice.

    What 2 consenting adults do in the confines of their room is none of the Government’s or the State’s business.

    BJP will not bring in any changes in this particular area(who ironically claim to speak for Indian culture), so the Congress should go ahead and earn the loyal following of not just 10% of Indians, but 10% of all the people all over the world.Recommend

  • Anooop

    “Yes, homosexuality is against Indian Culture.”

    Here is a sculpture from Ancient India, which celebrates Homosexual Sex(if this link is allowed).

    http://en.wikipedia.org/wiki/File:Samesexloveindia.jpg

    Clearly, you are wrong. Although there are mixed references to Homosexuality in other texts, there is clear acceptance and discussion of it.

    So, keep your opinions to yourself.

    ET, please treat this pic as a piece of Art, which it actually is.. We are all mature adults here. If you uncomfortable, please publish this, at the least.

    Here, is Shiva, God of destruction, shown as half man and half woman.

    http://en.wikipedia.org/wiki/File:Ardhanari.jpgRecommend

  • Anooop

    So, commenting here means India will become a Super Power?

    How absurd and utterly immature.Recommend

  • Anooop

    He is an Indian, most probably resides in India.

    I will be amazed when a Pakistani writes against Homophobia and pro-LGBTs. Or, for that matter call Ahmadis Muslims. There are somethings Pakistanis, no matter how liberal, just cannot do.Recommend

  • Another North Indian

    Nothing in Indian culture is against transgendered people. The author is wrong calling it a majoritarian agenda as if it were something that Hindus were imposing on unwilling Muslims and Christians. He is simply playing his ‘secular’ games that have nothing to do with the rights of transgendered people.Recommend

  • [email protected]

    That is a false and misleading parallel! Is being attracted to siblings or engaging in sexual relations with other immediate relatives a choice or a matter of genetics? Is it a natural fact that therefore should not be basis for legal or civil discrimination or a chosen behavior which may (rightly or wrongly) be regulated under socially-inspired legal provisions? It is the answer to these questions which determines legal status. The kind of slippery slope argument you are making is a fallacy and does not follow.Recommend

  • Ahmed

    Ok. lets forget bestiality for one second. What if the siblings just do it for fun with no offspring? Secondly, there are many people who are attracted to the same gender but do not pursue anything further(for whatever reason), it is a matter of choice for them.Recommend

  • Moiz Omar

    We all Pakistanis are not conservative and regressive. There is also a lot of conservatism in India.Recommend

  • Moiz Omar

    People who don’t believe in religion exist in Pakistan as well. I’m a Pakistani Atheist.Recommend

  • Moiz Omar

    I am a Pakistani, and I am for LGBT rights and condemn discrimination against Ahmedis. They should be allowed to practice their faith without restriction or fear. Recommend

  • Moiz Omar

    Do Indians have nothing better to do but think all Pakistanis are backwards and regressive beings all the time? I am a Pakistani, and I do recognise the positive the LGBT community has given to the World, such as Mr. Alan Turing. He was a homosexual who is considered the ‘father of modern computer science’ and also helped break a Nazi encrypted code. All Pakistanis are not regressive fundamentalists, and before you even talk to us about fundamentalism fix it in your own country first. Recommend

  • Moiz Omar

    Why don’t you worry about saving the Indian culture of raping women, killing baby girls and discriminating?Recommend

  • Rakib

    Culture, being dynamic does alter its contours over centuries depending on external influences that may be powerful at times..Greek mythology is full of tales of homosexuality. The root word for Lesbian, “Lesbos”, refers to an island in Aegean Sea, home of Sappho, who wrote love songs for her female lovers. Greek artifacts & pottery show graphic details of gay men like Alexander in action. Yet that country became very conservative when Orthodox Christianity came in. Indian quality of tolerance (which is not approval) remained. Indian temple sculptures grotesquely show bestiality too & that doesn’t mean it was celebrated. It was tolerated just as it was tolerated in ancient Greece & Rome. Vatsayana has clearly disapproved homosexuality & so has Kalyan Malla in his “Anang Rag”. I have an old copy of Arabic love-manual like Kama sutra-Shiekh Nefzawi’s “The Perfumed Garden” which has humorous but not unkind take on “deviants”. I also have two reprints of Mughal miniatures that show women in royal harem in same-sex embrace. Hypocrisy apart, Mughals were not as staid as they are made out to be. Transgenders/eunuchs had an honourable place in palaces. Hindus, Muslims became far more conservative in 19th/20th century than what they were earlier.The frank days of Babur who candidly admitted to his love for a kohl-eyed sweet boy from bazaars of Andizhan were over. The words he uses for the lad in his “Baburnama” are very tender. World has come long way since then but then today we note that more it changes more it remains same too!Recommend

  • Ankit Singh

    bjp have taken decision against homosexuality because they are always against sec377 at does not change their stance like other party for vote bank, now you will tell prostitution or suicide also made legal because it is also personal matter…….. even a country like russia & china are against homosexualityRecommend

  • Critical

    Well Ahmed
    Most of the muslims marry their first cousin.. In many parts of the world,its considered as incest …. That’s why Hindus have Gotra to know who is from lineage and they dont marry among same Gotra even if they dont have any direct relationship….Recommend

  • Rakib

    On a side note: Now & then I run into someone who demands I keep my opinions to myself while the opinionated one hopes to have a free run! Understandable childishness but why should tyranny of single opinion be tolerated by anyone? Your opinion for e.g. won’t be appreciated by President of BJP Rajnath Singh who is clearly anti-gay & those that have remained silent, & thus acquiescent, such as Jaitly, Sushma Swaraj of BJP and Mohan Bhagwat,Narendra Modi, both of RSS. And they claim implicitly to be torchbearers of the True Hindu Civilisation & Keepers of Hindu Cultural Nationalism. I defer to them to understand Hindu-Right, & sorry, not to you. Though I responded to @Balochi & others, personally I believe all-religions & liberalism are contradiction in terms therefore it makes sense to confine the arguments to Law (IPC Sec.377) & Fundamental Rights in Constitution rather than involve Culture & Religion.Recommend

  • Syed Owais Mukhtar

    ET again on the same “important” topic..!Recommend

  • Ahmed

    First of all please provide proof that ‘most’ of the muslims marry cousins.

    Secondly,it is called incest when it is between siblings, not cousins.Recommend

  • Anooop

    Why don’t you write about it on ET, with your name and full picture displayed.

    When that happens, please reply on this thread.

    THEN, I’ll be convinced.Recommend

  • Anooop

    I agree that culture is fluid and its prone to changes and can be heavily influenced.

    As the Indian culture was influenced, we influenced Muslim culture much more! That is the reason the 3rd gender were seen in Mughal courts. That is why the Muslim marriages are similar to Hindu ones – Mehendi and Dhol are an integral part of all North Indian marriages, for example.

    But, for me the Mughal influences and the Victorian influences of the bad kind should be rid off.

    Its imperative for the society to change for the better and we need to take in those aspects which are good for the society, reject those which are bad.

    Sexuality is not a Sin and should be discussed. We should be proud of Kamasutra and our ancient Indian culture, while eliminating practices like Caste system, which go against modern ethos.Recommend

  • Pappu

    Similarly religions should not be imposed on humans.Recommend

  • Anshuman Tripathy

    Hey guess what my narrow minded friend…Most developed countries have legalized prostitution and it is strictly regulated by their Governments(Japan,Germany,netherlands etc)..It is illegal only in paper in India (The largest brothel in Asia is in Sonakatchi in Kolkata), there are more than 7 lakh sex workers in our country,half of whom have HIV and another significant portion of that statistic is made up underage children who are forced into prostitution..Legalizing prostitution will permit only those sex workers to operate who come by their own free will and it will have mandatory Govt checks for HIV & underage children.Govt authorised prostitutes who want to be prostitues are anyday better than children who are forced into prostitution living with AIDS.Similarly legalizing euthanisia (assisted suicides) will stop the patients pain & suffering and let him die with dignity instead of living life like a vegetable.

    I don’t know from where you narrow minded bigots get the idea that if we legalize homosexuality ,Society will turn into a vulgar mess..Homosexuality is illegal in India at present , do you honestly think the present Indian society is pure & free of vulgarity? Most sex crimes are commited by straight men..The Delhi gang rape was done by straight men..Why aren’t people like you worried about straight men commiting so many sex crimes and more worried about two consenting adults living life by their own choice?Tell me one crime that was commited by Gay people in india?
    Do you expect people who are genetically hardwired to only be attracted to other people of the same sex to live an unhappy & isolated life pretending to be straight, because bigots like you think it is wrong for them to be gay or do you want them to lead a harmless life as honest tax paying citizens on their own terms ,being who they are, without any pretensions?
    It is Shameless narrow minded people like you that are spoiling India’s name in the global forum.
    BTW countries like Russia and China have a Brilliant Track Record of severe Human Rights Abuses..If you want to be like them please go and live there.Recommend

  • grandmasti

    Faith means be clear..This diplomatic language is very dangerousRecommend

  • Moiz Omar

    My full name is Moiz Omar.Recommend

  • Anshuman Tripathy

    Bro Homophobia came to India not Homosexuality….Homosexuality is accepted by traditional Indian culture..People are not rounded up and stoned to death for being Gay…It is Abrahamic Religions that are oppposed to it tooth and nail…Over the course of several millenia India has been invaded by many different cultures and our own Culture has been corroded as a result. Hindus who are against homosexuality and call it against nature are just plain ignorant and nothing else.Recommend

  • grandmasti

    well ,whatever homosexuality is not to be legalized in India..US and UK should keep their filthy culture back home..It would be astonishing to see two man kissing and cuddling openly on roads in India like young couple roam on roads of delhi..Dont know what kind of effect this will have on minds of children..This would be nothing less than cultural shockRecommend

  • TTV

    I agree. However, sexual orientation is NOT a choice. A homosexual person “chooses” to be gay as much as a left-handed person “chooses” to be left-handed.Recommend

  • gp65

    The court judgment did not refer to bestiality. Thisis stuff that the author is making up.
    The issue is this. There s section 377 of the constitution (which was made during British times) which criminalises homosexuality. No one has bothered to repeal it. Some gay rights groups went to the court and asked it to decriminalise homosexuality. the High Court obliged. This happened in 2009. Then religious groups (Hindu, Muslim and Christian) appealed against that judgment and went to Supreme court. The SUpreme court said that HC was wrong to legislate from the bench. As long as Section 377 remained on the statute, homosexuality could not be decriminalised. They asked the government to repeal the section 377 if they wanted to decriminalise gay sex.

    This is as it should be. It is not the task of the judge to pass laws. They can only interpret existing laws.

    I support the repeal of Section 377 in order to decriminalise gay sex. However, the SC judgment was not wrong at all for putting th onus on the government to do so.Recommend

  • gp65

    The author clearly has not read the judgment. It is not the SC judgment that criminalises gay sex, it is the article 377 of the statute that criminalises gay sex.

    The SC says that until such time as Section 377 is not repealed, it is not within the mandate of the court to decriminalise gay sex because that amounts to legislating from the bench which is not the role of the supreme court. IT has therefore put the onus on the government to repeal the section 377 through parliament which is where any legislation needs to occur.

    You have also implied that somehow Hinduttva proponents pushed for this implying that BJP was involved. The fact is that Hindu, Muslim and Christian groups appealed the highcourt ruling decriminalising gay sex. BJP was not an appelant.

    I support gay rights and gay sex should indeed be decriminalised but it is for the government to pass the necessary legislation. Giving press statements really does nothing to advance the cause of gay rights.Recommend

  • gp65

    Ahmadis have full rights in India. SO that was not related to this blog.
    The Supreme court has simply said that the law of the land determines criminality and it is not upto the court system to criminalise or decriminalise gay sex. If the government repeals section 377 (which is a BRitish era law) through the parliament, gay sex will be decriminalised.

    According to the Supreme Court the HC had overstepped its boundaries by pronouncing gay sex legal when the prevailing law of the land clearly says the opposite. It is the job of courts to interpret the law NOT make the law.Recommend

  • gp65

    You are not correct when you say that if gay sex is legal it automatically means gay marriage is legal. That simply is not true. Since 2003 gay sex has been legal in all states of US but at that time gay marriage was not legal anywhere. Even now only some states have legalised gay sex while in many other states gay marriage is not legal even as gay sex is legal.Recommend

  • gp65

    The question is can you be openly atheist without being accused of apostasy? In India you can be an atheist and no one cares. That is the difference.Recommend

  • gp65

    Good for you Moiz that you believe in gay rights. I agree with you on that. You are aware however that gays do not have any rights in Pakistan right?Recommend

  • gp65

    You say that a large part of Pakistani society which is gay. Two questions for you:
    1) Are they openly gay?
    2) Is homosexuality legal in Pakistan?Recommend

  • Parvez

    I would think that the Courts do not make laws but only implement them and lawmaking resides in the hands of Parliament. So if the people can summon enough pressure to be put on those who legislate, then a law would be made to favour the wishes of the people. That would be democracy in action working for the people and a resounding plus for the country.
    I thought the article was balanced and well written.Recommend

  • [email protected]

    Good. So you are conceding that one’s sexual orientation may not be a choice but one’s behavior is? That’s progress I suppose because the don’t-act-on-your-orientation argument is much easier to knock down. And STOP raising the incest issue already; that has no logical connection with sexual orientation which is a natural fact and, as you yourself seem to suggest, not a behavioral choice.Recommend

  • [email protected]

    Have you not seen the MANY articles written in ET about LGBT rights by Pakistanis? There have been many, many such articles over the years? You could at least have made use of the ET search box.Recommend

  • Critical

    Here is one link,when I said ‘most’ muslims, I meant that cousin marriage happen the most among muslims than other religions….not that every other muslim marries his cousin
    http://www.dailymail.co.uk/news/article-1394119/Its-time-confront-taboo-First-cousin-marriages-Muslim-communities-putting-hundreds-children-risk.html

    We are taught from our childhood to treat our cousins as siblings especially when both of them share the surname…So technically,its incest among us but u can ignore it otherwise….Recommend

  • Critical
  • chanakya_the_cynic

    Were you born a Muslim? Are you aware that 60% of your countrymen support the death penalty for you leaving Islam? And that Islamic law directs that you be executed?Recommend

  • chanakya_the_cynic

    The problem with Pakistani fundamentalists is they affect other countries. Recommend

  • Anshuman Tripathy

    Ummm..In a country where people are discriminated for being of a different sect of the same religion..I would obviously assume being of a different sexual orientation is hell on earth.Recommend

  • Anshuman Tripathy

    Wow..The level of ignorance you have shown in that one post is just astounding…When children watch straight couples kissing and fondling each other in Public doesn’t it have an effect on their minds then? You have a problem with Gay people just because they express how much they love each other? Why dont you have a similar problem when straight couples do it in front of children?
    and being Gay is an acceptable part of ancient indian culture…homophobia was brought to India not homosexuality….Recommend

  • gp65

    You feel it was balanced because you are not aware of the facts. The author blames Hindu right wing for this judgment. The reality is that
    a) It is not any Hindu organisation but rather Muslim and Christian religious organisation that appealed the HC judgement of 2009 decriminalising homosexuality. Would you have known that by reading this blog?

    b) As you may know that it is not the SC judgment that criminalises gay sex but a British era law which is still on the statute. Hence the author’s notion of blaming SC judgment for criminalising gay sex makes little sense. As you rightly stated it is not the court’s job to legislate. Their mandate is restricted to intepreting existing laws. As such the SC judgment corrected overstepping its mandate by the HC and directed the government to repeal section 377 of the constitution which criminalises gays.

    I support gay rights and hope section 377 is repealed. At the same time, I support this judgment because an activist judiciary that legislates from the bench is not desirable.Recommend

  • Supriya Arcot

    I think this should be revoked. Adults should be free to lead their lives as they wish .Recommend

  • Rakib

    You say I am wrong & may be I was but my understanding is this:- So far I know HC did not say gay-sex is “legal” in the judgement. It decriminalised gay sex by reading down Sec.377. There are such penal provisions that are in disuse without jettisoning the law in Commonwealth.(Even in Pakistan where same PCP377 exists nobody has been jailed for full sentence under its provision but that’s another matter).HC Judge was not altering the word of the law, simply keeping its penal provision in perpetual abeyance, thereby he implied gay sex non-criminal therefore Not-Illegal, which is not always same as pronouncing it Legal. If a relationship gets the imprimatur of Legality next logical step would be marriage & its registration, adoption, inheritance, divorce, the works. Is synonym of “not-illegal”, “legal” always? I am not sure any more! (I am not concerned with US but let’s say coin drop box collection on roads for a noble cause is not illegal in NYC but that doesn’t mean it’s legal activity since the moment a car driver complains it is considered breach of law!) Again, for example:- At times even legality of marriage among the “straight” becomes tricky issue. In India,in Goa,a Hindu can practice polygamy (subject to certain conditions like not having a male heir) without attracting charge of bigamy while a Muslim or Christian has to be monogamous. Are such a Hindu’s existing & future marriages considered legal if the whole family migrates to next door Maharashtra & can a Muslim walk in to neighbouring State, marry one more & come back to Goa & claim his marriages are all “Legal”! Or, is that all Not-Illegal? Interesting possibilities!Recommend

  • Moiz Omar

    Yes, I am aware of that. This is what happens when you mix religion and politics. Pakistan should be a secular state. This was also the dream of the Quaid-e-Azam Muhammed Ali Jinnah.Recommend

  • Moiz Omar

    Yes, I was born Muslim. My parents are Muslims. They know I’m an Atheist. My siblings, cousins and some of my friends do too. They don’t care. I live in a very liberal area of Pakistan.Recommend

  • Faraz Talat

    If you can get a goat to sign a consent form, sure. Otherwise, it counts as abuse.Recommend

  • Faraz Talat

    Incestuous behaviour is NOT a sexual orientation. If incest is prohibited, one may go out and seek sexual congress outside the house.

    If homosexuality is banned, it effectively ends a gay person’s sex life, because he/she will simply not be attracted to a member of the opposite gender.Recommend

  • Parvez

    Great and thanks…..that cleared up that misconception and I hope the author sees that.
    That means that this law is much like the blasphemy law in Pakistan that sits on the books from British times and seriously needs attention.
    In my view laws should never remain static but must change with the demands of time.Recommend

  • Rakib

    There was no need to enact anything; decriminalisation requires defanging of an antediluvian provision, not its amendment. For e.g. it was common practice under laws inherited from Raj to impose collective fines on an entire population of a district for disturbances caused by a few. High Court of Patna did not wait for any amendments from Parliament but struck down that provision in 1954 as unconstitutional & that judgment set the precedent. The 1860 law (Sec 377) that clashed with today’s concept of Human Rights of a group of citizen needed to be read down, which is what High Court had done earlier. Interpreting of an old law as per contemporary mores & customs is not only within the domain of court but its duty too. Judicial decisions, judgments even opinions impact the ever evolving common law & courts are not averse to playing knights in shining armour, as they must, to sufferers who may be current focus of society.Here Supreme Court did not crown itself in glory by mentioning that 377 affects only a minuscule minority. Apart from being statistically ill informed, the court also seems to be insensitive to those that are “minuscule” in numbers. That is dangerous thinking. Highest Court in the land is supposed to protect the fundamental rights of the smallest number too.Recommend

  • COLVINOD

    “but first sort out your issues on earth (i.e. Sanitary, Slum neighborhoods, class divide, Mao rebels..) ” Areyou aware that first world countries are also working hard to sort out problems you have mentioned. That does not mean they do not reach out for space. Your Argument is cockeyed.Recommend

  • Parvez

    Somewhat confusing as I am no legal mind. It seems to be that your view is that the High Court was well within ints rights to rule as it did, even though it went against the written Law ( 1860 ) which obviously reads like a ‘ bad ‘ law or rather, not consistent with the time ‘ law ‘.
    I still feel it is was the duty of the High Court to make its opinion known and direct the government to make the change through parliament.
    Doing the right thing in the right way is better than doing it in the wrong way……….I hope I’ve understood this correctly.Recommend

  • [email protected]

    Why are you on here reading a Pakistani newspaper if you think they are not even worth having a letter printed in? The less Indian trolls in Pakistani comments sections the better.Recommend

  • Rakib

    Kindly bear with me though it may tax patience..There are times when lines between legislature & judiciary appear to be blurred; this is not such a case. HC did not change a word in the law. It made the criminal aspect of law non-operative, that is, nobody can be jailed on this ground. The principle involved here is Reading Down of Law. What’s that? Fancy phrase for dilution! It means the law is either violative of fundamental rights as per altered definition of human rights world over or a part of the law is incongruous with changed mores or original Fundamental Rights. Law is framed by Legislature; its interpretation rests with Judiciary & here the interpretation was since it conflicts with Rights it must be made non-operative till Parliament is seized of the matter. That’s real wisdom!!Every law passed by Parliament can be tested in the Court, theoretically, to ensure its Constitutional validity. This is not to challenge the authority of legislature but as the check & balance to protect the Constitution.

    HC looked at IPC 377 that is of 1860 vintage. (Pakistan has the same word for word PPC Sec 377). HC observed & I quote:-“[“We declare that Section 377 of the IPC, insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21 [Right to Protection of Life and Personal Liberty], 14 [Right to Equality before Law] and 15 [Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth] of the Constitution.We hold that sexual orientation is a ground analogous to sex, and that discrimination on sexual orientation is not permitted under Article 15″]. And then in a tone of humility the Court said,” [“this clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which, we believe, removes a great deal of confusion.” ] The last quote is remarkable. How could SC miss it!! I am sure the appeal by the Govt will be successful.Recommend

  • Parvez

    That was a comprehensive explanation and an extremely interesting little read………..thank you.Recommend

  • Prav

    Moiz, in India you can be Atheist and become PM (Nehru) or even Chief Minister or a famous personality as well. Can you do that in Pakistan?…….indeed it is good that there is a generation of Pakistani Atheists and Science oriented people springing up. In India the number is pretty large, the world severely needs to to move from religion to science……so be careful dude.Recommend