Editorial: Gay Rights and Supreme Court of India – Let’s analyze

By: Iftikhar Islam

Many people were astonished and vexed about the Supreme Court judgment on Homosexuality (on 11-12-2013) while the others are exultant to see the Verdict. Both the section of the society failed to analyze the Supreme Court judgment on moral grounds. SC has not given this judgment on moral grounds but totally on the basis of Section 377 (Unnatural offences) of Indian Penal Code (IPC).

Further the Supreme Court said “Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General.” Which clearly shows the indication of deleting the said section; and if the parliament deletes sec. 377 of IPC then having sexual intercourse with same sex, anal sex and sex with animals will be legalized. The SC could have used the word “amend” instead of “deleting”. (Deleting sec.377 of IPC completely destroys men’s right in the society, where IPC does not have any provision to protect men who are victim of rape and sexual harassment). 

It is unnatural, unethical, immoral and unscientific to allow sexual acts between same sexes. It destroys the very purpose of existence of ethical society. People are very much attracted towards western society and give examples of that society which legalize prostitution, gays, lesbians, ‘same sex marriage’; failing to realize the increase in crimes as well as new emerging diseases. Today people are claiming it to be their “basic right” to have sex with same gender, tomorrow they will come up the same “basic right” of involving in incest, later with pedophile, and in the future with animals too..! Does it mean the law should get amended and give them permission to go ahead of what they think?

It is high time to think and introspect our self and involve in such acts with are beneficial to the entire society. Gays and lesbians will deteriorate the society and even makes life miserable for even decent person who often travels and stays in hotels for accommodation. We should prevent our children and future generation from becoming ‘gays’, ‘lesbians’ and all sorts of other similar inventions. They involve in those kind of unethical practices and later demand to have right to get proper medical facilities for the diseases which they get out of unnatural practices. Prevention is better than cure.

Is it unconstitutional?

Many people allege that the judgment is unconstitutional and infringe the basic rights by quoting Articles 14, 15(1) (2), 19 and 21. We should keep in mind that the ‘basic purpose’ of making the particular law should not get defeated in interpretation. We should also keep in mind that “No rights are absolute”. Let us see what these articles say;

Article 14 (Equality before law.)

"The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."

The Article clearly gives the equality before the law. If a ‘gay or ‘lesbian’ or ‘straight’ is tried under the law they have to go with the same process. If anyone commits anything illegal (Refer Article 21) then they have to get punishment accordingly. Anyone commits a crime u/s 377 of IPC. He/She will undergo equal punishment. No discrimination shall be made to any person.

Making illegal of having sex between ‘men and men’ (Gays), and ‘women and women’ (lesbian) is not an infringement of Article 14.

Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.)

"(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to

(a) access to shops, public restaurants, hotels and palaces of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public."

Making illegal of having sex between ‘men and men’ (Gays), and ‘women and women’ (lesbian) is not an infringement of Article 15 (1)(2).

Article 19 (Protection of certain rights regarding freedom of speech etc.)

(1) All citizens shall have the right

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; and

(f) (omitted)

(g) to practise any profession, or to carry on any occupation, trade or business

Again, it is not an infringement of Article 19 when SC makes the relationship of Gays and Lesbians illegal, because “no rights are absolute”. You cannot express your desire by committing a crime. Today you may express the right to have sex with same gender, tomorrow you may come up with having sex with close relatives (incest) and in future with animals – in the name of freedom of expression.

Article 21 (Protection of life and personal liberty.)

"No person shall be deprived of his life or personal liberty except according to procedure established by law."

Article 21 clearly has an exception to the procedure established by law. If personal liberty includes ‘having sex with same gender’ then it should also include ‘marrying a child’, ‘having relationship with mother, sister and daughter; having relationship with a married woman which goes against Sec. 497 of IPC. Even a person 'under 18' should have the liberty to get married.

SC rulings does not violates Art. 21 of Indian Constitution. Whoever does any illegal act should get punished according to the law without defeating the very purpose of the formation of law.

Scientific:

"There are over 15 million cases of sexually transmitted diseases (STDs) annually in the United States and the etiologic agents for these infections exceed 25 in number. The symptoms of any particular sexually transmitted disease are largely dependent on the route and site of infection. Organisms that typically cause genital and perineal infection result in similar symptoms when the distal anal canal, anoderm, and perianal skin are the site of infection. While most anorectal STDs are acquired via anal receptive intercourse, contiguous spread from genital infection occurs. Certain organisms, more commonly thought of as water- or food-borne diseases, are included with other STDs because they are spread by direct or indirect fecal-oral contact from various sexual practices."

[Centers for Disease Control and Prevention Tracking the hidden epidemics. Trends in STDs in the United States. April 2001. pp. 1–26. (Report: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2780056/) 

American Cancer Society now says that 'most anal cancers seem to be linked to infection with HPV'. This is human papilloma virus, which is readily spread from one person to another during sexual contact. 

"The Total population of MSM (Men having Sex with Men), as in 2006, was estimated to be 25,00,000 and 10% (i.e. 2,50,000) of them are at risk of HIV." 

[Ministry of Health and Family Welfare, Departments of AIDS control (Report: The Hindu, 12 Dec 2013, p. 12)]

Conclusion:

We should not uphold any unnatural, unethical practice in the society and strive to make a society which has least crimes and diseases. The concept of gays, lesbians and transgender will deteriorate the society and helps in increasing various diseases. The future of our children is based on our actions.