On SC Verdict on IPC377

Let me start with a story.

Once a nice judge was presiding over a case in which an innocent person was accused of a crime.

Now the defending lawyer the accused hire was kind of a dumb-ass. Judge could see that.

What the lawyer did was invoke the wrong argument. Now there exists an argument, which when invoked, will prove that the accused should be set free. Judge knows that argument. Prosecuting lawyer knows that argument, but our dumb defending lawyer does not.

The judge was quite conflicted about what to do. He wanted to save the innocent man. But he can not break the neutrality, he is there to judge and not to advise.

And even if he wanted to drop the win-able argument, it is not fair for him to do, as any argument before it is presented to the court, it must be researched and worked on. All case laws be referred and copies brought and submitted to court. Appropriate case to be picked and detailed arguments constructed. And if he just floated that current line of reasoning is wrong, and defending lawyer did not get exactly what is to be done, most likely defending lawyer would just get confused and ruin the case up even more.

In the end the innocent man went to jail.

Tangent: Reversal of Judgments

We often hear news about a judgment was reversed by a higher court.

I would like you to see that it is crap. We like to think that the case is "this must be", and various arguments are presented for that.

But that is not the case. A case is "this must be BECAUSE X". The argument is the part of the case. When a judge says no to "this must be BECAUSE X" he is not saying no to "this must be", and if someone else brings "this must be BECAUSE Y", and the judgment is ok, fine, then it must not be seen as a reversal of the case.

What I am trying to say is that laymen try to summarize complicated cases by simple slogan like lines, but the judge is not looking at that simple slogan, he is looking at something else.

If you only look at the slogan, you may feel that judgment is being reversed, but nothing like that is actually happening.

The two stories of IPC 377

In first story, a mostly orthodox government decided to use their morals to dictate rules for others decided certain acts were wrong and should be criminal.

Indians did not really believe that.

What Indians did instead of realize that IPC 377 was a second line of defense in case of rape cases.

Rape cases are quite difficult to prove, and in some cases when faced with difficulty, a ingenious lawyer will try to invoke other laws to get a conviction, and they usually resorted to 377. Some times they resorted to 377 to increase the severity of punishment. "May be it was not intercourse and hence rape, but it was definitely an unnatural act" argument.

Now when a judge sees 377 invoked in a rape case and sees those to motives at play, he plays along. Judge allows liberal interpretation of what can and can not fall in 377, as it may be deemed vague, and even if it was not, even if it was only as vague as any other law, they allowed it to be broadly interpreted as they always found a really bad man who is being punished by 377, nobody likes rapists.

So we have a law, designed due to moral reasons(homosexuality is bad), but perpetuated due to another kind of moral justification(anything to get rapist in jail).

In case you do not believe me that 377 is only invoked in such cases in India, read what SC judge said:

All the aforementioned cases refer to non consensual and markedly coercive situations and the keenness of the court in bringing justice to the victims who were either women or children cannot be discounted while analyzing the manner in which the section has been interpreted.

The aforementioned cases are the ones presented to SC as evidence of 377 is wrong and should be removed. See, all of them are about non consensual cases. None about homosexuality.

The second story of IPC 377

Since this law exists, some people are deemed criminals who are otherwise not, just enjoying something they enjoy.

And since a tiny minority of those people who become criminal due to this law enjoy popular support, and in general population likes to get rallied and needs excitement quota, they are trying to end this law.

Why? Because in theory they do not like to be called criminals.

What does 377 say really?

Like I said, there have been reasons to keep the 377 a bit vague, and since there exists very small number of people who have been hurt by vagueness compared to number of people who benefited due to its vagueness, one can argue that the vagueness is a virtue in this case.

But as a matter of principle, citizens must know in advance what acts are going to be criminal, vagueness is not a good thing.

There exists another reason for vagueness of this law, it is more to do with prudeness than anything else, nobody wants to spell the exact act out, so they be vague and resort to euphemism.

Lets look at the text of 377:

[377] Unnatural offenses -- 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. Explanation.- Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.

As you can see the penalty is severe enough that people desperate for conviction in genuine rape case tends to revert to it.

One can argue that the 377 is equivalent to no naughty business with animals, and lets say "no back-door entry".

Basis of SC case and why it was stuck down

Now half educated people of this country, who do not care about that fact that the law is mostly being used in defense of victims of sexual abuse, and based on their "citizens must know what is criminal above all" ideology, are trying to remove this law.

Now I do not sympathize with them, not the homosexuals, but these crusaders who pretend to be helping them, they are two different class of people, with different agendas, one is looking to be Kejriwal and famous, and one wants to live his life without problems.

People who want live their life without problems are already living their life without problems despite this law, only people who want to raise the roof are shouting here.

Rants aside, so they want the law revoked, and they want it done by Supreme Court of India.

So lets see how they tried it, and why they are wrong.

Basis of the case in SC

Now the geniuses tried to claim that "377 is bad because it discriminates based on sexual orientation, which is unconstitutional because of Article 14 and 15".

Please read the story I mentioned at the beginning of this post, I am like that judge, who is being presented stupid argument by a dumb-ass lawyer. I do want homosexuals to have better life, but that doesn't mean you can say any stupid thing as long as it favors homosexuals and pretend you are right.

The vagueness argument

Now one can argue that law is vague, invoke the vagueness argument.

It is relevant to mention here that the Section 377 IPC does not criminalize a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offense.

Emphasis mine. If we want to pretend that the vagueness is the problem and we assume the judge is lying that it is not certain acts, we are fooling ourselves. The SC judges are clear they have one very specific act, "entry from behind" in mind. Those who claim vagueness as the central issue are being dishonest.

Vague laws are judged not just based on the wording of the law, but the entire set of cases histories on how they were invoked, the initial vagueness of 377 has been more or less fixed in a precise set of rules in the 200 or so cases in which it was applied. Anyone saying its free for anyones interpretation is lying. Judges know what those certain acts are, and so do you.

Equality before the law

This is another of their fancy legal ninja moves. They somehow assume in their head that non discrimination based on sex somehow includes non discrimination based on sexual orientation, which it does not (if the word "sex" is putting messing with your ability to think, replace it with gender). But lets say it does. As you will see it simply doesn't matter.

The claim that homosexuals is discriminated due to 377 is laughable. Here is why. If we assume that 377 can be summarized as "no backside entry", this law clearly leaves lesbians alone.

Ask your self, if a "no back-door entry" really discriminates based on sexual preference? Of course it does, it discriminates between people who like back-door entry and people who do not.

But the dumb-asses would go in court and say it discriminates between homosexuals and heterosexuals. Like what the fuck?!

According to wikipedia 30-50% of adult heterosexual population enjoy back-door entry. You know how many homosexuals are there? 1-3%.

This law hurts 30-50% of the heterosexual population. Among homosexuals it hurts 50%, assuming number of homosexual men is equal to number of lesbians.

As you can see this is not about homosexuals vs heterosexuals, it is about a specific act. 377 does not care if you are hetrosexual or homosexual, 377 is blind to your sexual orientation, as long as you perform one act, you are criminal. The sheer number of Indian hetrosexuals affected by this law is far more than the number of homosexuals.

Is is not about homosexuals, its about anal sex. People who pretend it is about homosexuals are dishonest.

But it does make one group, who solely identify themselves by an act, criminals

Everything boils down to this. If a group defines itself based on defying one law, then should we treat them as any other group and declare the law invalid, or should we treat them as criminals because of the law.

In any other case you would agree that the group becomes criminal. If one group said they wanted to smuggle things, and there was a law against smuggling, its the same thing. Same with murder, pedophile, incest, drug abuse etc etc.

Your first impulse if you are pro homosexual equality right would be to feel outraged about putting homosexuals in the same statement as murderers, pedophiles and so on, claiming, well they are "innocent".

You see you will be invoking a definition of "innocence" based not on law, as 377 clearly makes them criminals, but based on other factors.

Lets see how HC tried to defend homosexual right:

Section 377 IPC denies a person's dignity and criminalizes his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution. As it stands, Section 377 IPC denies a gay person a right to full person-hood which is implicit in notion of life under Article 21 of the Constitution.

If we start with the assumption that homosexuals are not criminals, this logic holds. But if we start with the assumption that homosexuality is bad, then this logic does not hold, and you can re read HCs statement as:

Section 302 IPC denies a person's dignity and criminalizes his or her core identity solely on account of his or her murdering spree and thus violates Article 21 of the Constitution. As it stands, Section 302 IPC denies a murderer a right to full person-hood which is implicit in notion of life under Article 21 of the Constitution.

Replacing homosexuals with murderers leads to utter absurdity, and the only reason we do not treat homosexuals as murderers is our assumption. So you can see if or not HC's argument is absurd it depends on what your assumptions are.

There exists in this society numerous people who deem homosexuals same or even worse than murderers.

Please see that entire case lies on assumption. There is nothing in terms of legal framework to come at this conclusion that homosexuality is good, we have to assume either they are good or bad based on our personal judgment. The same way we assume incest, pedophilia etc are bad.

Constitution, Democracy and Morality

Constitution is not helping us there.

And if we ever come to a place where constitution does not shed a clear light on whose morality is right, morality is decided by democracy.

If we would have been really lucky, and our constitution included non discrimination based on sexual orientation, along with age, sex, color etc, and if there was still 377, then it was one thing. But it does not.

So all we are left is with personal judgment. And the sole purpose of constitution and democracy is that if we have to rely on personal judgment, we want to go with majority.

Supreme Court knows that the assumption that homosexuals are equal is a valid assumption. But they also know that they do not have legal basis to prove that the assumption is valid. Also if Supreme Court somehow did pull a stunt and enforced their assumption on the nation, bypassing the standard procedure of validating assumptions by asking people, it would be a coup against the democracy.

Supreme Court does have power to strike down laws that are unconstitutional, but as you can see, there is no assumption made in constitution about homosexuals, saying constitution is pro or anti homosexuals is both wrong. Constitution in their right mind left it to parliament to decide the fate of homosexuals, and SC knows that, and respects that, and so must we.

If SC saw that Constitution writers had a clear idea on homosexuals, and parliament is trying to overwrite that preference, then SC must have intervened. But you can read Constitution, the writers personal views, and you will see no such pro homosexual view exists with them.

If we pretend Constitution writers were pro homosexuals, then we are just fooling ourselves. They knew of the existence of 377, they knew the implication, they could have added the clause, but they did not as a matter of fact.

We can speculate why did they not, may be they were anti homosexuals themselves, or may be they feared public was and public response for including pro homosexuality in constitution would be harmful, so they respected public views at that time and era.

We must be so lucky that Constitution is not actually anti homosexuals, and in that we must thank the writers (in that case SC would have fought any attempts by government to remove 377, even if SC believed 377 should be removed).

377 is not the problem

The most important point I would like to make is that 377 is not the problem.

377 has almost never been invoked against regular homosexuals. Homosexuals are technically criminal, but pragmatically, the real problem they face is social.

The reason educated country wants court to decide on this is because they fear if it was left to parliament it will never happen, as they sense the predominant opinion of the majority of the country is very anti homosexuality. This is how anti homosexuality our society is.

This is the real problem, not the SC, not the law. In our country they are treated like criminals, not because of 377 but because this is how the country feels.

People will not stop treating homosexuals bad just because 377 was shot down. They will treat them as equal only once they see them as equals.

Lets be pragmatic

This is year 2013. This is the year Kejriwal did what he did. This is the year politicians are hearing and fearing the young blood the most. Both Sonia and Kejriwal has publicly supported pro homosexuality reforms.

This is the hot iron to strike. At this point SC will take may be a decade to strike 377 down if we are really lucky.

Lets also consider this other point: may be it is a good thing that SC struck it down, as otherwise 377 would have gone, we would have congratulated ourselves and gone home thinking our job is done.

Now that SC has kicked it out we are talking in favor of homosexuals in every opportunity we get. International media is putting pressure on us, they are naming and shaming us and putting pressure on our government.

The fight we have is not with SC, but with the society.

Finally

I do not believe in lets lose all hope of parliament and only try to get whatever we can from Court, its stupid, there is very little what Court can do, and if we are talking about revolutionary ideas and activism, we must remember that revolutions don't start by accepting the status quo.

What do you think?

What are your opinions? 377 should be stuck down? Should it have been stuck down based on case under consideration by SC? If we are to assume gay rights have to be worked towards, what should be the next step, try to reopen case after find some legal technicality, demand it from parliament?

Sonia publicly supported striking down 377, but her government blocked it in parliament from happening few years back. Kejriwal too has suggested he will support it, does he really mean it, or will it be like Sonia? And Modi, what do make of his silence, is he anti homosexuals? Does it affect your view of him as next PM candidate?

Is India ready for all this? Should it be buried for another decade or two?