SUPREME COURT OUGHT TO HAVE RECAST SECTION–377 FOR LGBTs

Written by RAMAKANT TIWARI

Section-377 pertaining to unnatural carnal liaison has been struck down by the apex court and LGBTs as a living entity in society recognised for the first time in history. It was a British legacy, crudely drafted and implemented hitherto with it’s effectiveness hardly visible or measureable. Language of Section-377 betrays cruel intentions of British-Occupiers of the country to rope in as many Bharatiya-s as possible to humiliate and torture them when they had absolutely no business to stay in the country at all. After the legacy survived for one and a half century, it’s annulment by the apex court quite logically led to an outburst of joy all over. However, after the crescendo of joy petered out, thought-provoking intense questions remain, what next ? Was the outburst of joy premature, immature or outright justified ? Did Supreme Court examine the issue in a comprehensive manner encompassing future course of actions to be initiated by Government ? Or they just nullified the ill-contrived law and left it at that for others to brainstorm as well as blamestorm ??

 After cursorily traversing through the judgement I concluded, widespread belief that Bharatiya Judiciary delivers only judgements and not at all Nyaya, is absolutely accurate. The judgement is not only entirely out of sync with Prakriti, it violates fundamentals of dignified human existence. Definitions of fundamental rights / individual liberty are so water-tight and pedantic that it condemns LGBTs to be proud of being / born as LGBTs and remain perpetually indebted to the Almighty for being LGBTs !! Unnatural phenomena have been declared absolutely natural and liberated to remain unnatural throughout in the name of rights and individualities. And I am not dismayed by utter absence of vision / foresightedness in the judgement because it is essentially a ‘judgement’ and not ‘Nyaya’ at all as the judiciary itself is a British legacy seeped in ‘Buckingham Palace’ orientation and not our rich Sanatana heritage. The judgement copiously refers to ‘Gora-Firangi’ quotable quotes superficial at best and puerile at worst. I am sure, Supreme Court Justices must have discovered themselves abundantly exalted and privileged while referring to those silly quotable quotes.

 

The Nyaya  that ought to have been delivered to LGBTs but was not delivered as a measure of ‘miscarriage of justice’, ought to have been based on undermentioned premises –

 

While apex court was right in decriminalising ‘Conduct-377’, it failed to declare it unnatural. As a matter of axiom, it is unnatural and it should have been declared so quite eloquently. Certainly they are not criminals and least of all, life imprisonment for the ‘crime’ of ‘Conduct-377’ is entirely atrocious stipulated in Section-377 of IPC hitherto. The Section grossly violated fundamental values integrated in our ancient heritage. 

 After declaring ‘Conduct-377’ unnatural, apex court should have focused entire narrative running into scores of pages and precious judicial time to suggest / advise Government on rehabilitation protocols for these citizens of special abilities. Just as Government had been merely reactive and not aggressively active on this welfare front, Supreme Court too had been merely reactive in their judgement. Unless injustice is challenged by people of affluent means and resources, neither judiciary nor Government condescend to address serious issues of injustice largely afflicting deprived ones and so many of them still outstanding.

 They should have called upon the Government to undertake compulsory clinical examination of all LGBTs. Those who can be surgically rehabilitated, must be rehabilitated and allowed to live a normal life.

 Court should have ordered mandatory psychiatric examination of all members of the community. Those who can be rehabilitated through psychiatric treatment, must be rehabilitated and allowed to live a normal life.

 Educational / awareness programmes must be conducted throughout the country to sensitise parents / teachers towards any sign of ‘Conduct-377’ in kids. Any such tell-tale sign must be taken seriously and sympathetically to initiate remedial measures immediately. Once upon a time, such awareness programmes were extensively conducted for AIDS. The obnoxious disease must have been eradicated from the country completely as no more such programmes are visible. May be the scourge of AIDS has been banished from the country completely !!!!! LGBT phenomenon can never be eradicated with finality. It will exist forever and our remedial / rehabilitation protocols must be strong and efficient.

 

Apex court must have ensured, there is absolutely no discrimination in any sector of economy when it comes to employment / livelihood opportunities for LGBTs. They could have instructed Government to enact relevant laws with a monitoring mechanism in this regard.

 Supreme Court ought to have stipulated, LGBT marriages are not acceptable or allowed by law under any circumstance as sanctity of marriage as an institution is inviolable. However, if LGBTs decide to live together for the sake of company or otherwise, it should not be regarded as a criminal offence. LGBTs whether single, double or multiple, must not be permitted child-adoption. There is no merit in allowing a normal child to be adopted by LGBTs and grow up abnormally with adopted LGBT parents. 

 Apex court must have ensured, there is absolutely no discrimination against LGBTs with respect to any social / economic / political opportunities / benefits available in the country to all others offered by the Government.

 Apex court must have ordered, absolutely no discrimination against LGBTs when it comes to property inheritance laws. They must be entitled to inheritance like anyone else in normal course of life.

 Supreme Judiciary ought to have ordered stringent punishment for all offences related to personal humiliation or slur inflicted on LGBTs on the lines of SC / ST Act.

 Spirit of the judicial intervention and wisdom if any, should have ensured, LGBTs are treated equally like anyone else barring their physical / psychological limitations with comprehensive guidelines. That would have led to a healthy rapport between LGBTs and non-LGBTs as well as dignity / self-esteem for the community. Unfortunately what they have done is to invite variety of views including that of influential overseas funded NGOs / mindless and aggressive activists, views and judgements delivered in other countries, superficial and silly quotable quotes of so-called western intellectuals entirely divorced from indigenous realities, then prepared a cocktail stirred but not shaken !! Consequently, such a serious issue of LGBTs has been dismissed like an unguided missile that will hit anyone and everyone in years to come. Let us hope and pray, judicial wisdom gains greater momentum in future and the tricky issue is re-visited with the objective of delivering Nyaya  instead of merely striking down the century old archaic law and leaving the field open for unscrupulous / reprehensible values and considerations. 

About the author

RAMAKANT TIWARI

After a career in private sector in disciplines of Institutional Marketing and Corporate Affairs, Ramakant Tiwari is currently an author and a corporate director. His first book Srimad Bhagvadgita as Swadharmayoga Upanisad was published in 2015 by Vikas Publishing House, New Delhi.
Currently based in New Delhi, he also serves as Co-Convener (Intellectual Cell), Delhi BJP.

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