The Supreme Court (SC) judgment on partially decriminalising Section 377 of the Indian Penal Code (IPC) was on expected lines. The judgment was virtually out well before it was formally announced on September 6, 2018 as in the course of the arguments the 5-bench judges often gave their piece of mind about decriminalising the said section.
As such the verdict of the Supreme Court, therefore, is not unexpected. But it is a watershed moment in our history. In the historic verdict, the Court emphasised the many strands that make up India, the centrality of individual freedom, reaffirming that old adage, “unity in diversity”. It will throw up several challenges on equality and discrimination. It remains to be seen whether Indian society at large reconciles or not with the SC judgment on Section 377 IPC.
The Union Government in 2009 in Delhi High Court had argued that homosexuality comprises only 0.3 per cent of the population, and therefore the rights of over 99 per cent cannot be compromised. However, this time round in the SC the government meekly surrendered.
The Union Government, which had initially sought adjournment for filing its response to the petitions, later had left the issue of legality of the penal provision of criminalising consensual unnatural sex between two adults to the wisdom of the court. The Centre had said that the other aspects of the penal provision dealing with minors and animals should be allowed to remain in the statute book.
In July, when the SC reserved its verdict in the case, the bench had observed that it does not wait for “majoritarian governments” to act if it finds that a law violates fundamental rights. Justice Nariman had said: “The moment we are convinced that there is a violation of fundamental rights, we cannot leave anything to the legislature… The whole object of the fundamental rights chapter is to strike down laws that violate fundamental rights which majoritarian governments may find it difficult to do because of vote bank concerns etc.”
Lawyer J Malhotra says the SC has applied judicial mind decriminalising Section 377of IPC, 1860 under the umbrella of Article 14 of the Constitution of India, rather than duly applying medical, social and moral values of our country for making cheerful the LBTQ community. Now, it is the government, how it will issue guidelines, ordinance and act, if any in this regard.
It is said that the judiciary in the name of fundamental rights and equality before the law has dented the religious, social, moral and cultural values of the country at large. Across the country, socially and morally it is not acceptable to indulge in homosexual act or bond. The green signal given in the past by the judiciary to the care-free live-in relationship is destroying the institution of marriage which encompasses responsibilities and duties followed by rights. It is one more cultural shock for a culture rich country!
What is Section 377 of IPC?
Section 377 of the IPC states: “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.” There are over 20 countries where homosexuality is not a criminal offence, and same-sex marriage is recognised, including the US, England, Australia, Germany and France.
RSS reacts cautiously to SC verdict
Meanwhile, the Rashtriya Swayamsevak Sangh (RSS) has reacted cautiously to the Supreme Court’s verdict decriminalising consenting homosexual relations between adults in private, agreeing with the court that homosexuality should not be a crime. However, it nuanced its position by saying that it did not approve of homosexuality, as it was against ‘nature’ and against social beliefs.
RSS Akhil Bharatiya Prachar Pramukh Arun Kumar has reportedly said: “Just like the Supreme Court, we also do not consider this criminal. But we do not support homosexuality, as same-sex marriages and relations are not in sync with nature. Traditionally too, Indian society does not accept such relations”.
Interestingly, 15 years ago KR Malkani, the then vice president of the BJP, the notable ideologue of RSS and Editor of its magazine, ‘Observer’ had described Times of India as Times of Sodomy referring to a front page article on gay rights published in the paper. Surprisingly, neither the RSS nor the BJP continued with their old stands, and their role in the Supreme Court judgement cannot be ignored.
JIH & JUH condemn
Jamaat-e-Islami Hind (JIH) has expressed its disappointment over the judgement. JIH Secretary General, Muhammad Salim Engineer said it is dismayed and disappointed over the Supreme Court verdict to legalise homosexual behaviour between two consenting adults.
Engineer said: “By decriminalising homosexuality and permitting male-male and female-female marriage will destroy the family system and prevent the natural evolution and progress of the human race. Such filthy experiments have destroyed human society and violated the rights of women on large scale in certain countries and we should learn a lesson from its cascading effects.”
Echoing the same sentiments, Jamiat Ulama-i-Hind (M) said the verdict is against India’s religious and cultural ethos and values. JUH warned that the verdict would further compound and aggravate the sexual anarchy in the country.
JUH General Secretary, Maulana Mahmood Madani underlined that “our society has already been in the grip of sexual violence and crimes against women. In this context, the apex court verdict is perplexing which may give impetus to sexual misconduct and crime.”
Frank Joseph, MD, in his book titled “Everyone Should Know These Statistics on Homosexuals” has collected the following statistics:
(a) One study reports 70% of homosexuals admitting to having sex only one time with over 50% of their partners.
(b) Homosexuals account for 3-4% of all Gonorrhoea cases, 60% of all Syphilis cases, and 17% of all hospital admissions (other than for STDs) in the United States.
(c) Homosexuals live unhealthy lifestyles, and have historically accounted for the bulk of Syphilis, Gonorrhoea, Hepatitis B, the “gay bowel syndrome” (which attacks the intestinal tract), Tuberculosis and cytomegalovirus.
(d) Homosexuals were responsible for spreading AIDS in the United States, and raising violent groups like Act Up and Ground Zero to complain about it. Even today, homosexuals account for well over 50% of the AIDS cases in the United States, which is quite a large number considering that they account for only 1-2% of the population. Homosexuals account for a disproportionate number of hepatitis cases: 70-80% in San Francisco, 29% in Denver, 66% in New York City, 56% in Toronto, 42% in Montreal, and 26% in Melbourne.
(e) The median age of death of homosexuals is 42 (only 9% live past age 65). This drops to 39 if the cause of death is AIDS. The median age of death of a married heterosexual man is 75.
(f) The median age of death of lesbians is 45 (only 24% live past age 65). The median age of death of a married heterosexual woman is 79. Homosexuals are 100 times more likely to be murdered (usually by another homosexual) than the average person, 25 times more likely to commit suicide, and 19 times more likely to die in a traffic accident.
How powerful LGBT/American lobby is?
Pravin Gurusamy, a trade unionist, says that millions of people in our country don’t have food to eat, water to drink, clothes to wear, or a roof over their heads. How did gay rights become such an important item on our agenda? A few rich foreigners (mostly Americans), with the help from brain-washed Indian elitists and leftists, have succeeded in pushing this item to the top of our agenda list. The fact that this even became a national issue shows how powerful LGBT/American lobby is. India apes the worse from West, he adds.
One only hopes that after sometime another Bench of judges will not take a more progressive view to ‘decriminalise’ bestiality and child sex as just part of ‘ sexual preference’. Even consent among LGBT will not condone the unnatural, unethical and therefore inadmissible act. This is not a victory for reason. This is a victory for treason.
N Katju, a social activist, says there were no debate, no consensus, and no chance for dissent. This is rule by decree. This is authoritarianism at its worst. Supreme Court is acting like a politburo. This is a severe undermining of democracy and rule of law. And why did not Supreme Court strike down Section 377 in its entirety? Is it just because the rest of it is not acceptable to Western mores? Who are these people to decide what is moral and what is immoral? People who are calling this freedom are idiots. This is loss of freedom, he said.
More than 150 years ago the British said gay sex was illegal; we blindly followed what they said. Now Americans say gay sex is all right, we are blindly following what they are saying. It seems to me that all we do is copy westerners. It is almost as if our Supreme Court judges are unable to think on their own, Katju observes.
M Chola, an educationist, says: “I agree 100 per cent that customs and rituals have always been more powerful than laws of the land. For example untouchability is a case in point, discrimination notwithstanding, will continue forever, no law can eliminate or eradicate the social evils ingrained in our genes.”
It is said that if you go against the nature the nature will come hundred times against humanity. Sexual act in all living beings are for reproduction and all other sexual act which cannot reproduce is against nature. Legalizing gay means more children targeted as their gay habits are legalised. And now all this makes those targeting being considered legit as they have adult partners to back them.
Out of all forms of unhealthy sexual practices, homosexuality is the unhealthiest and has been the cause of the beginning of the epidemics of both Syphilis and HIV/AIDS. Early reports in the 1980’s suggested that male homosexuals had an average life expectancy of less than 50 years – more than 20 years less than the overall male population.
A Canadian study in 1997 found that male homosexuals have a life expectancy of 20 years less than the general male population (based upon a prevalence of 3% of the male population). Using several different measures, including life expectancy determined from obituaries, two large random sexuality surveys (in the USA and Great Britain), and a survey of those never married in Denmark, Sweden, and Norway, indicated an average age of death of less than 50 years old 7.
A third study, published in 2002, found that the median age of death of 88 homosexually partnered men was 45 years, while for 118 un-partnered homosexual men it was 46 years. This latter study put the average life expectancy of male homosexuals nearly 30 years less than the general male population.
Another study showed that, on average, ever-married men outlived the ever-homosexually-partnered by 23 years in Denmark (74 yr. v. 51 yr.), and 25 years in Norway (77 yr. v. 52 yr.) Ever-married women outlived the ever-homosexually-partnered in Denmark by 22 years (78 yr. v. 56 yr.), and in Norway by almost 25 years (81 yr. v. 56 yr.).
Justice Markandey Katju, a retired Supreme Court Judge, says that Indian society remains largely conservative and strongly disapproves of gay relationships. To say that the law does not prohibit something does not mean that society regards it as proper. In India, homosexuality remains a matter of social stigma. A lot of Indians — even the educated ones — regard homosexuality as immoral, revolting and disgusting, law or no law.
Katju writes that law and morality are different issues. Our legislators may frame laws or courts deliver judgments that are ahead of the moral values of a society. But it would be far-fetched to expect that moral values can be changed because of court judgments.
Almost all religions with a few exceptional orders have expressed severe detestation for homosexuality. Faced perhaps with their receding popularity, only a few denominations of Christianity and Hinduism have tried to reconcile with the modern approach towards the issue. Both the Holy Quran and the Holy Bible describe in gory detail about the destruction of the ancient twin cities of Sodom and Gomorrah on account of the sinful indulgence of their population in homosexuality. There has been difference of opinion among jurists regarding the punishment of homosexuality. Some people have tried to argue that there is no punishment in the Quran for homosexuality. This is erroneous.
Scholars interpret this as a direct command related to homosexuals. Further the punishment of 100 lashes in Surah Nur in the Holy Quran applies to all sexual relationships outside marriage, whether the one indulging in it is a male or female.
Dead Sea: A living lesson for homosexuals
Meanwhile, the historical account of the Dead Sea that exists in Jordan since thousands of years is a lesson for those who indulge in homosexuality.
Dead Sea, which is 82 kilometers in length and 18 kilometers wide, is thousands of foot deep and exists 1,300 foot below the sea level in between Palestine and Jordan. Due to the salt ratio which is 8 times more than the other oceans in the world, the density of water in Dead Sea is enormously high. As such a person floats on the surface and is not drowned in it.
Around four thousand years from now Looth, the nephew of the Biblical Patriarch Abraham, was living in Sodom, a town 55 kilometers to Amman, the capital of Jordan. Quran has described the historical accounts of Looth and his folks in Surah Al-Ankaboot and Surah Hud with many details. People of Sodom indulged in homosexuality, a habit unheard of till then.
Looth tried hard so as to refrain them from indulging in homosexuality. However, they declined to fall in line. Their insistence on lewdness invited the wrath of God.
Before finally destroying the people of Sodom, God sent his angels to the town, who were in juvenile human form. They knocked at Looth as guests. Looth, aware of the habit his folks were involved in, was distressed and helplessly tried to find ways to protect them. They advised Looth to leave the town with his companions. Once the believers abandoned the town, the angels destroyed the whole town.
Interestingly the English word ‘Sodomy’, commonly used for homosexuality is derived from Sodom. Describing Sodomy, Wikipedia notes, it is a term used today predominantly in law (derived from traditional Christian usage) to describe the act of anal intercourse, oral intercourse, or bestiality.
Majority of narrators believe that Dead Sea is exactly the place and the town that was earlier known as Sodom.
The Biblical version of the above event of destruction of the twin cities of Sodom and Gomorrah on account of the sinful indulgence of their population in homosexuality is given in the Book of Genesis 19:1-30.
Those who do not believe in religions or God and believe in Science, should be more vocal in their opposition to homosexuality, if they have more concern for human lives and health rather than the false freedom propagated by the forces of economics in tandem with the forces of politics.
It is intriguing that in India, a land of saints having multi-religious society with more than 95 per cent rejecting homosexuality, the people at large have remained a silent spectator while the Section 377 was decriminalised. Unless the 95 per cent realise the threat and organise themselves, the commercialisation of vices with dangerous impact on life and family system will continue. They have to realise that strong Family System is the natural wall of safety.
Meanwhile, Dr Javed Jamil, a thinker and writer and Head of Chair in Islamic Studies & Research, Yenepoya University, Mangalore, has called the verdict on Section 377 as Black Day for India and its family values. He says: “After scrapping of Section 377, I wish all religions had come on streets to march against the Supreme Court judgment. But when Hindutva-led government has paved the way for the judgment and the leaders of other religions do not find important enough to protest, nothing substantial can be hoped.
Homosexuality is not unnatural: SC
Dr Javed Jamil puts forth his arguments against the stand of the Supreme Court as follows: – 1. Can any Biologist or Anatomist or Physiologist confirm that anus is structurally and functionally made for intercourse? 2. Can any Biologist or Medical Scientist confirm that anus plays any role in reproduction? 3. Sex is the function of reproduction (even if it does not always lead to reproduction) just the way eating is a function of nutrition (even if eating is not always done for nutrition). If somebody tries to eat through nose, ear or anus, will it also become natural? 4. The argument that consent makes this legal is fallacious. Bribes are given and taken through consent of both. Will it become legal? Hindus cannot marry a second woman even if it is through consent of all. If somebody kills the other due to mutual consent, will it become legal?
During hearing, Supreme Court argued that even prostitution and promiscuity are dangerous and the threat of AIDS from these and homosexuality will be reduced if legalised. Dr Jamil had then countered asking a few questions in the process:
(i) That all the three are extremely dangerous; but out of the three, homosexuality is most dangerous from medical point of view. Count the dead among the 40 million deaths due to AIDS in last 25 years, most of them were prostitutes, or homosexuals or those who came in their contact;
(ii) Even if condoms are properly used, the risk reduces by only about 30 pc. The failure of condoms is much higher in rectal sex than in vaginal sex. While vagina is naturally built to receive penis, anus is not and the tears caused lead to higher risks; let anatomists and physiologists tell that anus is fit to receive penis and penile discharges; why such a blatant violation of human anatomy and physiology?
(iii) If all humans become gay, within 50 years there will be negligible population of human beings on earth and no human being left within 80-100 years;
(iv) If there is freedom of choice in having hundred partners with no legal ban on it, why there is no freedom of choice in having more than one wives?;
(v) If there is freedom of choice in having sex before 18, why no freedom of choice in marrying before 18?
(vi) Why no freedom of choice in driving on the right side of the road and in not using helmets?
Freedom of Choice is a selective concept used by the economic and political forces to further their own interests; only freedom of good choices can be given, not that of dangerous choices. In a country, where even the meat of cow is banned on account of the religious sensitivities of a particular community, we are being told that homosexuality is a human right and freedom of choice, Dr Jamil argues.
Human Rights are the most notable plea in defence of homosexuals. There is a difference between “homosexual rights” of humans and “human rights” of homosexuals. The former are unacceptable but the latter should be ensured. Homosexuals need attention: social and medical. They need to be protected from unauthorised punishments by other members of society and they need the psychological support for giving up their addiction so that they can join society as normal people.
Five stage formula of spreading evils
Dr Jamil says it is normalisation to institutionalisation to legalisation to commercialization to globalisation.
When merchants find market potential in some propensities traditionally regarded as vices, they adopt a time-tested methodology to further their plans. The first step in this methodology is normalisation, by which an impression is generated through surveys that a certain practice is not uncommon among the masses. The arguments in favour of its being ‘normal’ and ‘natural’ are advanced with the help of partners in the media, institutions and non-governmental organisations.
Institutionalisation is a process by which the vice becomes an institution in itself. Advocacy groups and organisations and communities specifically aimed at defending and popularising the vices are floated.
Institutionalisation leads to a demand of legalisation. Political and social movements are organised to pressurise the lawmaking and law-enforcing institutions to accept the vice as legal and to decriminalise any activities associated with that vice.
Once this is achieved, the stage is set for the large scale commercialisation. Anyone opposing the new development is hounded by the media and the NGOs; critics are brutally forced into silence. The whole methodology of course involves lots of funds; once the commercialisation is set into process, huge money starts flowing. This is accompanied with massive popularisation and glorification. People start taking the vice as a sign of high living. More and more people start succumbing with the growth of market.
Law needs to be different for L, G, B and T
The truth is that each one of the components of LGBT are different in terms of the ways they emerge and the impact they create.
The law needs to look each of the four cases differently. The Supreme Court should have given strong directions to the Government to ensure that no new eunuchs are formed. It should have also warned in strongest terms against any attempts to institutionalise, popularise and commercialise homosexuality. It would have then been plausible if it would have directed the Government to put the gays and lesbians into counselling centres for a certain period rather than lodging them into jails. By straightaway decriminalising it, they have turned homosexuality into something that needs celebration and support. Soon, the Gay clubs, tourism and media will prosper and within a few decades, the gay community will swell leading to huge medical and social issues. But in a world where both problems and their solutions are commercialised to the hilt, who cares for life, health and peace of individual, family and social life?
Eunuchs the Victims
Eunuchs pose a greater problem in Asian countries including India. Most of them are kidnapped in their young age and are subjected to surgical removal of their male organs and are forced to live as eunuchs. How can castration be destiny? How pertinent a question! How mind baffling! How painful! But no one – in the government or the courts – has tried to stop the destiny of castration. While giving Hijras their human rights, opportunities for good education, jobs and comfortable living are what the existing Hijras deserve without bias. What needs to be ensured with greater vehemence is that no more eunuchs are created.
According to surveys carried out by Salvation of Oppressed Eunuchs, (SOOE), the number of eunuchs in India is around 1.9 millions, (Eunuch Statistics in India – Dr Piyush Saxena). The natural justice does not merely demand good life for existing eunuchs but also total and effective ban on the creation of eunuchs and rigorous punishment to those involved in the trade. Let India take lead in not allowing castration to become destiny!
Transgenders are more creation of a movement
The truth is that transgenders are more the creation of a movement. They are psychiatric patients who need treatment to turn them into normal human beings rather than hormonal or surgical interventions to turn them into completely abnormal persons. There is a need of total ban on LGBT organizations, and hormonal or surgical procedures to cater to the abnormal needs of transgenders. The surgeries cannot turn their chromosomes from Y to X or X to Y. These are unnatural means that permanently damage the true identity of the individuals.
LGBT big & fast growing industry
The LGBT is of course a big and fast growing industry. The purchasing power of LGBT is often described as the “Pink Money”. According to an article, “with the rise of the gay rights movement, pink money has gone from being a fringe or marginalised market to a thriving industry in many parts of the Western world such as the United States and United Kingdom. Many businesses now specifically cater to gay customers, including nightclubs, shops, restaurants, and even taxicabs; the demand for these services stems from commonly perceived discrimination by traditional businesses. Worldwide in 1998, pink money was valued at £350 billion ($560 billion) across a variety of sectors — especially entertainment and consumer goods. Purchasing power in 2012 in the United States is expected to increase to $790 billion.”
*Views expressed are his own.