Judicial homophobia: Quiet Minority Criminalised

By Prabhakar Timble
23 December 2013 20:26 IST

The Delhi High court was right; the thirty two members Supreme Court speaking through two judges has erred. The judgement is unscientific and conflicts with empirical data. It is unfair, unjust and unreasonable to hold homosexuality as unnatural; hence the verdict of the Supreme Court cannot be enveloped as a judicial or judicious order. It needs to be consigned as a considered view of individuals who happen to be judges and who have their limitations in expanding the horizons of mind and intellect probably due to the heterosexual conditioning and the stone walls of public morality fuelled by organized religion. The logic of the two judges of the Supreme Court is weak and cannot transcend to reach out to protect the rights of the LGBT community. Judges probably know nothing of what they have decided. If they knew even little they would not have attempted to criminalise what the Delhi High court has decriminalized. Supreme Court is undoubtedly the final word but the verdict comes from judges who are alien to information and scientific research and ill-equipped if not incompetent to decide on such issues. Homosexuality is Greek to judges who are not prepared to learn through unlearning.

Flaws in reasoning

The Supreme Court has dislodged the Delhi High Court judgement on three grounds. First, the LGBT forms a minuscule fraction. This cannot be an argument at all. If miniscule, it means there is no threat to society that the LGBT will market itself to multiply. Further, if they are such a miniscule then greater is the need to protect the community from the onslaught of the majority.

Homosexuals are not welcome anywhere and there is no space for them in a dominant and arrogant heterosexual society. As school students and later in college and universities, they are targeted, bullied, ridiculed, hated and mocked. Slurs and verbal sexual harassment is common sentiment against LGBT. In educational institutions, teachers consider them as nuisance and to be driven away like mosquitoes. Families’ cold shoulder gay and lesbian and do not want them in the neighbhourhood. There is resistance to them in occupying places in social organizations and democratic institutions. Now, the rescuer of the last resort i.e. the Supreme Court nails them as unnatural and condemns LGBT as criminals.

Political parties with greed for votes can bull doze miniscule fractions. The judiciary is expected to guard the unprotected and vulnerable. It appears that the fundamentals of the Congress party speaking through Sonia Gandhi, Rahul Gandhi and Kapil Sibal are clear. They are not carrying the baggage of the religious leaders who decide public and private morals of the gullible mortals. Sushma Swaraj of the BJP made an attempt to sound moderate stating that the party will tell its view at opportune time. But, the President of the BJP toed the orthodox line stating that they will go with the view of the Supreme Court. This should not be construed as respect for Supreme Court. It is surrender and subservience to the orthodox religious preaching.

The Church is known to espouse the rights of minorities. It is now clear that for the Church, minority means only religious minorities. The stand of the Church shows that they would trample on minority rights and recognition except when it is one determined by religious affiliation. Roman Catholic Church does not support homosexual lifestyles. But, it speaks of tolerance and love. This is a diplomatic move to maintain a fake spiritual ground, then a genuine concern for the LGBT.

 

The second major objection of the Supreme Court is the issue that the Delhi High Court placed exclusive reliance on the judgements of other jurisdictions in decriminalizing homosexuality. This does not look to be a strong reason to upset the progressive order of the High Court.

Most of the doctrines evolved by the Indian Supreme Court are based on progressive rulings in other countries. The “due process” clause which expanded and widened Art 21 of the Indian Constitution was through judicial legislation based on the judgements of the US judiciary. The celebrated ‘Vishakha’ judgement defining sexual assault and the human rights jurisprudence invented by the Supreme Court is a re-discovery based on judgements of other jurisdictions. The Supreme Court which set up Special Investigation Teams, Court Empowered Committees has shocked the Indian society on the threshold of entering the era of modern moral values of deciding on an issue without consultation with experts in the relevant field. It would be wrong to assume today that the Indian society disapproves homosexuality.

Further, the Law Commission of India in its 172nd report had recommended the deletion of Section 377 of the Indian Penal Code. This section was introduced in 1860 when the term of homosexuality had not entered the dictionary. This term was coined for the first time in 1869 by Karl Maria Kertbeny whilst dashing a letter to the German Minister of Justice.

The third objection is on the grounds of public morality considering that homosexuality is unnatural as provided under Section 377 of Indian Penal Code. The argument that society gets motivation to turn to homosexuality is an irrational argument. The extreme view that society will turn childless is nonsense.  Bestiality as an argument collapses as this could be there in any relationship. The Church considers homosexuality as immoral but the Church is not the legislature and judiciary of secular life. It is an unreasonable and inhuman dictate which should not rule the judicial mind.

Sexual orientation

Homosexuality is not a psychological disorder. A person’s sexual orientation and sexual attraction to people of the same sex, the opposite sex or both depends on numerous frames. The sexual behavior of gay and lesbians is different from heterosexuals. Homosexual teenagers and young adults face unique challenges as they try to come to terms with their sexual orientation and further as they open out to their friends and families. They are prone to loneliness, depression and feelings of isolation. Rejection, homelessness and stigmatization are the common threats faced. Added to this now, is the stamp of criminal confirmed by the Supreme Court.

The task of the judiciary is to make the society kinder and just to all, not only for heterosexuals. The society’s cherished beliefs on sexuality cannot be the ground to criminalise a section of the population. Sexual orientation can be a mix of both. It can be predominantly heterosexual and incidentally homosexual. It could also be predominantly homosexual and incidentally heterosexual. Lastly, it could be exclusively any one.

The uncivilized beliefs of the past should not be assumed to be the belief of the future. The Supreme Court should buttress its legal eminence with resources from scientists, psychologists, physicians and mental health specialists whilst deciding on such high quality areas of which little is known to the judicial officers. A judicial mind should invite non-judicial professionals to provide studied reports to avoid perversity, obstinacy and near insanity in verdicts which affect the right to life of people even if it is a miniscule fraction.

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Prabhakar Timble

Mr Prabhakar Timble is an educationist and a legal expert. He has served several educational institutions, especially as the Principal of Government College at Quepem, Kare College of Law in Madgao as well as couple of Management Institutes. He was also the State Election Commissioner of Goa.

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