Decision on S 377: Misplaced but Perhaps Correct

Today, on 11th December 2013, the Hon’ble Supreme Court gave the ruling in a much awaited case, i.e. the NAZ Foundation Case; a case which has been sparking debates ever since the suit was filed, and more so after the Hon’ble Delhi High Court in this case declared Section 377 of the Indian Penal Code to be partially ultra-vires. A great deal to the disappointment of the homosexual couples in India and also the LGBT right activists and supporters, the Supreme Court’s decision of setting aside the High Court’s order, and criminalizing homosexuality once again, came as a massive let down.

Much like various other people who consider themselves progressive in their thoughts and actions, I too was hugely disappointed with this ruling which prima facie shows the regressive attitude of our society and comes as one plummeting us back to the Dark Ages. After all, how can we claim to be a nation accepting all kinds of diversity, if we deny people the very basic right of choosing their partners; however objectionable it may seem to our heterosexual sensibilities.

But, on deeper thought, a contrary opinion occurs to me regarding the correctness of this decision and a part of me accepts it to be appropriate. This definitely is not because I have some issues regarding someone’s different sexual preferences or that I am moral policing around; not in the least. I am not saying that I agree with the grounds that have been given for setting aside the High Court’s order; for whatever I have come to know, I fail to find myself in sync with it. In fact, many of the reasons are not what I would have expected from an institution as high as the Hon’ble Apex Court. What triggers my changed outlook is the fact that in my view the laws regarding sexual preferences and sexual molestation are defective in their very basics.

To think of it, in today’s world, we can come across news articles regarding forced sexual molestation of men by other men…..and there would definitely be cases where women might be sexually offending other women, children (both male and female). I agree it is disturbing to think that women could commit such grossly deplorable act; but we must not rule the possibilities. What is to be looked into is that the penal code does not classify such offences being committed against men or being committed by women as rape. In such cases, the only redressal the victims of such offences can achieve is through Section 377 which talks about unnatural offences; otherwise these cases would go unnoticed and unpunished.

Therefore, before decriminalizing S377 what needs to be done is making rape laws gender neutral and coming to terms with the fact that men can be victims of sexual assaults too and they need equal protection of law. Unless this step is taken, and Section 377 is decriminalized without such change in the rape laws the male victims of sexual assault would have no remedy available to them.

Another thing which can be done is adding a provision in Section 377 itself, that if the intercourse happened with the consent of both the parties, it would not amount to an offence. Consent, which is currently not seen as an important factor with regards to S377 needs to be given weightage in deciding the cases. 

The Apex Court has correctly laid the decision in the legislature’s hands regarding the legality of Section 377, whatever be the reasons provided for the same. It now falls upon the legislature to take a strong stand and decriminalize homosexuality as and when practiced by two consenting adults. Homosexuality in my firm belief is not something which should be considered illegal, violative of the law of the land and of the nature, and is definitely not something which is criminal enough to be punished with life imprisonment or imprisonment for 10 years (as per the current statute). Unnaturality is a law of the nature itself and it needs to be acknowledged and understood; criminalizing it is in itself committing an offence and robbing people of the right to live with dignity, the right to equality before law and the right to privacy.

Hence, I would say that keeping in mind the unavailability of another forum to tackle with sexual offences against men; it is only considerable that Section 377 be kept criminalized for the time being. What needs to be seriously pursued though is achieving a mechanism which accepts gender neutrality in terms of sexual offences and after this is achieved legalizing homosexuality. It might not be the best possible statutory provision…..but it definitely is the only option available to us at the moment to protect those who become victim to such activities, and are forced into it without consent.

And they lived happily ever after, without each other.......

In movies we have often seen love stories having fairy-tale endings, the hero getting the heroine, overcoming all obstacles and living happily ever after. Not that movies not ending on a high note are not made (they sure are, and in a significant number), but even with those films, at the very least there is a satisfaction, that the lead protagonists had at some point experienced mutual love, had had their love reciprocated with the same intensity and the same ferventness with which it was given. Many of these stories stay with us after leaving the cinema hall and come back to haunt (good haunting this one) our memories even when they are long gone.

What lay forgotten are those stories which play out in our real lives, and not the reel ones, stories where although we do love, and love dearly; but the adoration, the ardent admiration is never returned, never reciprocated, stories with not even a far-fetched possibility of a happy ending. Now, when I talk of love, I am taking the prerogative of applying some uncommonly found common sense and not counting impossible scenarios, like being deeply in love with a film-star or something, because although your stars might shine upon you, making this dream turn into reality; more often than not this is definitely not the case.

Love has universally been acknowledged as a beautiful sensation, and those who have experienced true love are considered blessed. Girls have been known to have reposed their faith in the ‘he loves me’ ‘he loves me not’ game, how so ever irrational the act seems to a bystander (or even to them at times), in the hope of finding solace in destiny, in signs and symbols; holding on to the very last shreds of optimism they can lay their hands upon. What guys do in such state of affairs is something I am not very sure about, and despite all claims of their single track mind, there is no denying that they too possess a soft heart, capable of showering boundless love and affection.

You never know when you stumble upon this divine feeling. One day you do not know that person, and the next thing you realize you might be heads over heels in love. Or maybe you have known someone for ages; you had been friends for too long, prior to learning that there was a deeper attachment involved, that this is the person you want to share the rest of your life with. Some of these tales end beautifully while in some less fortunate circumstances, even before you can comprehend that you are in love, fate plays the villain, separating you before the love has got a chance to blossom.

At times you are not able to convey your feelings to the other person, thinking “yaar itni bhi kya jaldi hai”, being afraid of being snubbed; at other times you actually face the dreaded rejection; or at yet other times (worst case scenarios) the person you have fallen for is already committed, in love with someone else. Various reactions ensue from the aforementioned situations; some are able to deal with it and move on, some get stuck to loving that very person (with or without any hope of ever getting him, the selfless love), while others who are the extremely sensitive (read weak..not that being sensitive is being weak…but that the step taken by them classifies these people as weaklings) kind take the easy way out and decide to end their lives not caring an ounce about all the others who are concerned for them.

The first and the third situation (one being welcome and the other frowned upon) are comparatively better than the second one. What can be more problematic and hurtful than dealing with the fear of rejection or actually seeing your loved one with somebody else? This would be harder for those who had come really close to winning the affections of their guy/girl and one tiny mistake might have cost everything. There are people who deal with the same day in and day out; and manage to live through it without complaining. Their chronicles are never documented, never are they given due acknowledgement, never credited for their patience, tenderness and the will to smile despite the constant pain in their hearts.

Stephen Chbosky wrote in The Perks of Being a Wallflower "So, this is my life. And I want you to know that I am both happy and sad and I'm still trying to figure out how that could be." And this is how their life is, happy yet sad, contented yet a longing for a little more…and above everything the desire to survive, to not let their emotions take control of the better part of their minds. Perhaps, these love stories end the same way as ended a novel I had been recently reading… “And they lived happily ever after, without each other”. Or do they really?!

And Yet I’d say………..Happy Diwali…..!!!

As it happens each year, this time around too people would be wishing each other a happy diwali, wanting every one of us to have a pleasant and prosperous life, praying to Goddess Lakshmi and Lord Ganesh to bestow their divine blessing upon all their friends and acquaintances, yearning that each one of us gets what s/he desires for and so on and so forth.

And like every other time, I’d be watching on at the ongoing hullabaloo in a detached manner, being not really interested in either the crackers or the prayers. Or perhaps, being a little morose this time, I’d be much more isolated from the festivities, not indulging in the only aspect of this auspicious day which I find enchanting- lighting the lamps and watching their flame shimmering and dancing away into the night. Or on another note, I might just force myself to get engrossed in the merry-making more than ever- so as to forget my melancholy and that un-nerving sense of loneliness. The second option seeming much more inviting and agreeable- to myself and to those in my vicinity.

Deepawali or simply Diwali is believed to be the festival of lights marking the victory of good or evil; making one aware of the knowledge contained within his inner self; thus dispelling all ignorance of being, a person usually suffers from. There is no need for me to delve into the details of how Diwali is celebrated or what significance it holds for the Hindus, as each of us I hope is well aware of all factual information associated with the festival; and also it is not in the least my intention to write an essay on the topic (this being a futile affair, going by the aforementioned logic).

Anyways, yet again I’m indulging in my habit of straying away from the main point and stepping onto unnecessary side-tracks. My concern solely lay with Diwali’s innate nature of driving out the misery one is facing and bringing joy to him/ her; something I am fervently hoping it would do for me. If nothing else, today I can test the truth in this faith; and at the risk of contradicting myself, I’m sure I would lose this bet, as it would brighten my day with mirth and delight, since at the very least I would be seeing happiness on the face of my loved ones…..which without a doubt is more than enough for any one. A welcome loss, to be honest!

And hence, possibly for my own contentment, shedding my various apprehensions aside (most of which are illogical beyond imagination), I, like all others, wish everyone a very happy and joyous Deepawali. Ending with Atal Bihari Vajpayee’s poem, which describes my feelings almost accurately:-
“Bhari Dupahri Me Andhiyara,
Suraj Parchayi se Haara,
Antartam ka Neh Nichode,
Bujhi Hui Baati Sulgaye,
Aao Phir se Dia Jalaye”