LGBT – A Good Case, Badly Presented
Suresh Srivastava
The efforts of a small section of
middle class intellectuals and thirteen of their NGOs, to get social approval,
through legal intervention for certain sexual preferences, hitherto considered
immoral by a substantial section of the society, has come to a naught. These
middle class intellectuals claiming to be progressive socially, showed
political naivety by failing to appreciate the wisdom and power of the
Parliament as the representative of the Indian people. Instead of getting the
grievances of the LGBT community, regarding the actions of law enforcing
agencies under section 377 of IPC, in the matter of sexual preferences of
lesbians, gays, bi-sexuals and transgenders, redressed by Parliament through their
elected representatives, they preferred to challenge the constitutional
validity of the section 377, alleging it to be discriminatory, encroaching upon
the fundamental rights of a minority group, inter alia gays, to have consensual
sex in private. This construes that, in the opinion of the petitioners, not
only the founding fathers of our constitution, but also the subsequent framers
of the law, our Parliament, and the interpreters of the law, our Supreme Court
have failed in their duty by not repealing it or by not striking it down as
unconstitutional for sixty five years.
Petty bourgeois intellectuals are
always in a hurry and adamant in implementing their utopian ideas. They want
everything to be delivered, the way they want, by some genie as soon as they
wish. The petition which was dismissed by the order of the apex court dated 11
December 2013, met its fait accompli, the day petition was originally filed
before the Hon'ble High Court of Delhi in 2001 seeking it's indulgence to
declare the section 377 as violative of the constitutional rights of
individuals having consensual sex in private.
Let us examine if right thinking
people could have foreseen twelve years ago, the fate of the petition, and what
the way forward is now.
Before going into the facts of the
present case, let us examine some fundamental aspects of development in the
inclusive democratic political system of our nation which is a federated
structure of complex societies of diverse nationalities, languages, religions,
cultures and modes of productions e.g. feudal, capitalist, tribal and even
slavery in terms of bonded labour, which gives rise to heterogeneous groups,
with diverse interests, some time conflicting, coexisting together.
Our constitution gives responsibility
to the elected representatives to legislate through Parliament and State
Assemblies for ensuring honourable living and development for the citizens,
individually and collectively, keeping proper balance between mutual rights and
obligations and to oversee the functioning of the government. The Supreme Court
has been assigned the responsibility and authority of judicial review to ensure
that the legislature enacts laws in accordance with the letter and spirit of
the constitution and the government acts in accordance with the laws enacted by
legislature. At the time of independence and adoption of the new constitution,
to ensure smooth transition from the previous regime to the new regime, all the
laws in force during the old regime were adopted with a provision to amend or
repeal them as the needs of the society would develop. The right to amend or
repeal any existing law is vested in the legislature and not in the judiciary.
The judiciary is given the right to interpret the law in consonance with the
developing needs of the society.
Our nascent democracy in sixty years
has developed into a strong vibrant democracy because of perfect understanding
between legislature, executive and judiciary for mutual respect for their
respective responsibilities and authorities. Society is an entity ever
developing; economically, politically and culturally and so are developing
aspirations of individuals. Old values give way to new values. With this, new
conflicts and clash of interests between different groups or sections of the
society also emerge. Our legislature has been amending or repealing provisions
in existing laws and enacting new laws, and the judiciary has been interpreting
old and new laws to meet the needs of the changing times keeping the sanctity
of the objects enshrined in our constitution. Because of conflicting interests
between different sections of the society, it is not always possible to satisfy
every section entirely, but in general the nation as a whole feels satisfied
with the role played by our judiciary, may be less satisfied with the role
played by our legislature, in strengthening our democracy. Petty bourgeois
intellectuals, who lead every struggle for a social change, because of myopic
vision, focus on short term interests of a segment of the society and are not
able to appreciate that an integrated and flexible approach might be able to
satisfy a wider section.
In the light of above general
observations, let us examine the petition.
In the petition it is prayed that
Section 377 IPC may be declared as constitutionally invalid insofar as it
affects private sexual acts between consenting adults or in the alternative to
read down Section 377 IPC to exclude consenting same-sex sexual acts between
adults.
Section 377 IPC is contained in
Chapter XVI of the IPC titled “Of Offences Affecting the Human Body”. Within this Chapter Section 377 IPC is
categorised under the sub-chapter titled “Of Unnatural Offences” and reads as
follows:
“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 years,
and shall also be liable to fine.
Explanation - Penetration is
sufficient to constitute the carnal intercourse necessary to the offence
described in this section."
From the contents of section 377 it is
clear that the petitioners are having in mind only MSM (Men who have sex with
men) or gays when they are asking for exclusion of consenting 'same-sex sexual
acts'. Further, use of term 'sexual orientation' in their arguments regarding
Article 15 of the constitution shows that they consider gays different from
normal man.
Presence of words 'voluntarily' and
'penetration' in Section 377, excepts minors and lesbians from its ambit, but
it covers all adult males, females and eunuchs. Effectively, the petitioners
chose to fight, out of LGBT community, only for gays, leaving out all normal
males, females and eunuchs at the mercy of the archaic law.
The petition was ill conceived on two
counts. It was assumed that gays are a different community just because they
are homosexual and homosexuality is considered by the society a sexual act
against the order of nature. Secondly it tried to project that section 377 is
directed against gays only and hence is discriminatory. It is obvious that the
petition was doomed to be rejected by the apex court on both the accounts. Once
it is accepted that the consensual sex between gays, who according to material on
record are a very small fraction of the society, is not a normal practice for
all other male members of the society or in other words is against the order of
nature, the plea that it is being done in private can not absolve the
perpetrator from penalty. Since the law is applicable to all citizens, normal
males, females and eunuchs, equally, the argument that it is discriminatory
against gay community does not hold ground.
Social activists with their petty
bourgeois mentality and identity politics, try to find faults with entire
political system and undermine the wisdom and sacrifice of a whole life of our
founding fathers, who put in place the finest constitution that could be
conceived, for the new nation. They try to set things right in an arbitrary
manner through mass protests and judicial activism. In this case also, instead
of choosing the correct but torturous path of educating people about such a
complex issue and convincing the people's representatives to bring about the
desired change in the law through Parliament, they wished the judiciary will
step into the domain of legislature and wishfully thought to get, through a
petition, what they ought to have got through a democratic process. Their
misconceived approach was destined to result into miscarriage. The Hon'ble
Supreme Court has rightly observed, "In fact a constitutional duty has
been cast upon this Court to test the laws of the land on the touchstone of the
Constitution and provide appropriate remedy if and when called upon to do so.
Seen in this light the power of judicial review over legislations is plenary.
However, keeping in mind the importance of separation of powers and out of a
sense of deference to the value of democracy that parliamentary acts embody,
self restraint has been exercised by the judiciary when dealing with challenges
to the constitutionality of laws."
In last few decades, attitudes and
preferences, legally and socially, about sexual activities have undergone a sea
change. In the eyes of law the idea of normal sex has transformed from being
sex-for-procreation only to sex-not-for-procreation also. Socially it is being
accepted that sex is for recreation and procreation is incidental to it. People
exposed to modern technologies and modes of production are having views about sexual
activities which are more liberal than those of people who are still working
with primitive modes of production.
Development of science in the area of
human behaviour has played a great role in convincing people that sexual
interaction between same sex persons exists in animal world also, and hence is
natural for humans also. “According to current scientific and professional
understanding, however, the core feelings and attractions that form the basis
for adult sexual orientation typically emerge between middle childhood and
early adolescence. Moreover, these
patterns of sexual attraction generally arise without any prior sexual
experience.” (American Psychiatric Association). Everyone is aware that as
children, irrespective of sex, grow, they enjoy sexual gratification by
stimulating each other's genitalia and it is quite natural. And as children
grow into adults, if they are left on their own, they will experiment all kinds
of sexual acts and develop their individual sexual preferences in a perfectly
natural way. And culmination of sexual stimulation into ejaculation or orgasm
is also a natural consequence. Hence new generation is getting used to accept
that, sexual intercourse between same sex partners or non-penal-vaginal
intercourse is not against the order of nature.
The petitioners are better advised to
pray to the apex court to 'read down' Section 377 IPC to clarify that 'carnal
intercourse' between consensual same gender partners shall not be 'against the
order of nature'. Hon'ble Supreme Court has already shown the way forward.
'Another significant canon of determination of constitutionality is that the
Courts would be reluctant to declare a law invalid or ultra vires on account of
unconstitutionality. The Courts would accept an interpretation, which would be
in favour of constitutionality rather than the one which would render the law
unconstitutional. Declaring the law unconstitutional is one of the last resorts
taken by the Courts. The Courts would preferably put into service the principle
of 'reading down' or 'reading into' the provision to make it effective,
workable and ensure the attainment of the object of the Act. These are the
principles which clearly emerge from the consistent view taken by this Court in
its various pronouncements including the recent judgment in Namit Sharma v.
Union of India'
Socially conscious intellectuals, who
want to be real actors in making of the history through social movements, must
remember Marx's teaching, "Theory also becomes a material force as soon as
it has gripped the masses. Theory is capable of gripping the masses as soon as
it demonstrates ad hominem (fallacy), and it demonstrates ad hominem as soon as
it becomes radical. To be radical is to grasp the root of the matter."
Suresh Srivastava
03 February 2014
9810128813
(Author is the president of the
Society for SCIENCE)
