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LGBT agitation and its paradoxes

Debraj Bhattacharya

Updated: December 16, 2013, 8:51 PM IST
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First thing first - Article 377 should be amended/repealed to ensure that the LGBT community does not feel "criminalised". However in my view we need to think carefully why the Supreme Court gave this particular judgment.
There are two sides to the massive outpouring of anger and vitriol as soon as the judgment of the Supreme Court by one of its most reputed and senior Judges came out. The first is a happy one - it showed that the LGBT community is not alone and there is a massive amount of support among heterosexual community as well. Famous people from around India, including several Bollywood celebrities, expressed their support for the LGBT community and denounced the judgment. There is another aspect of the reaction which has however frightened me. Justice Singhvi, in an interview to a TV channel said in a polite and dignified manner - "please read my judgment". But those who were denouncing the judgment had very little patience for that. Facebook and Twitter became sites of a virtual mob lynching one of India's most respected Judges. Television talk shows became revolutionary platforms. But how many of those who were raising their shrill voice actually bothered to read the judgment first? I am afraid very few. A judgment can of course be correct or it can be incorrect and there are ways of challenging the judgment. But what is frightening is the lack of public decency that was shown especially in the virtual world as hyperbolic and melodramatic status updates filled the newsfeeds. It seemed as if the judgment has said that homosexuality is a crime and all homosexuals should be now rounded up by the police and put in prison.
The reality is however much more complex. After reading the judgment I felt that the main issue that the respected Judges were raising is that changing a law is the prerogative of the legislature and not that of the judiciary and therefore the Article 377 should be amended/changed by the Parliament. Nowhere in the judgment the Supreme Court has said that they consider homosexuality to be a crime and the state must take action to imprison the LGBT community. On the contrary they urged the Parliament to make the appropriate changes.
Why did the judgment say this? I think this is a matter that requires careful reflection and its implications go well beyond this particular case. In India it is the legislature (Parliament/ Assembly), which is a representative body, has the power to make or change laws. The responsibility of the Supreme Court is to protect the Constitution and say whether a particular law is violating the constitution or not. Being a non-representative body it is dangerous for India if the Supreme Court usurps the power of making laws from the Parliament. Two examples may be given in this regard. Recently the Land Acquisition Act, after lot of distress across the country, has been changed by the Parliament and not by the Supreme Court. On the other hand the Singur case is a case where it is for the Supreme Court to decide whether the legislation passed by the Government of West Bengal in the Assembly is a valid one within the framework of the Constitution. The two are not the same.
Moreover it will be worthwhile to take a look at the history of the LGBT movement in Great Britain which led to the change in laws on homosexuality. This is relevant since it was Great Britain which introduced the law that is now Article 377 in the constitution. So we may ask what happened in the UK as a result of which homosexuality was de-criminalised. Let me quote a passage from an article in Wikipedia:

"In 1965, Lord Arran proposed the decriminalisation of male homosexual acts (lesbian acts had never been illegal) in the House of Lords. This was followed by Humphry Berkeley in the House of Commons a year later, though Berkely ascribed his defeat in the 1966 general election to the unpopularity of this action. However, during in the newly elected Parliament, Labour MP Leo Abse took up the issue and the Sexual Offences Bill was put before Parliament in order to implement some of the Wolfenden Committee's recommendations after almost ten years of campaigning.
The Sexual Offences Act 1967 was accordingly passed and received Royal Assent on 27 July 1967 after an intense late night debate in the House of Commons. It maintained general prohibitions on buggery and indecency between men, but provided for a limited decriminalisation of homosexual acts where three conditions were fulfilled: 1) the act had to be consensual, 2) the act had to take place in private and 3) the act could involve only people that had attained the age of 21." []

It can be seen clearly that the decision to change the law was not taken by the judiciary but by the British Parliament. The LGBT movement in India, like the movement for Right to Education or the Right to Food, should have focused on putting pressure on the Parliament rather than taking the route of the judiciary.

We must also guard against misleading sensationalism regarding the use of the word "criminalization". The fact is Article 377 was hardly ever used even before the Delhi High Court verdict in 2009. An impression is gaining that Government of India considers the LGBT community as criminals and they are being imprisoned on a regular basis based on this Article. Nothing can be further from the truth. This article has been rarely used in the last 150 years and the biggest problem that the LGBT community faces is societal acceptance rather than state persecution. Indeed in terms of societal acceptance also the situation has improved significantly in the last decade or so.

Therefore, instead of lynching the Supreme Court judgment and the Juges who the verdict it will be perhaps wiser to ask why the Parliament is not taking necessary steps to ensure that Article 377 is changed or scrapped. The good news is that the Government has at least shown its willingness to do something. The activists associated with the LGBT movement and their supporters should put pressure on the Parliament to pass a new law as it was done in Britain. Let us hope that Article 377 is scrapped and a new law is introduced sooner than later.

First Published: December 16, 2013, 8:51 PM IST