JUDGEMENT ON GAY; WHICH WAY SOCIETY WILL GO

which will you go?

The judgement of Delhi High Court which seeks to legalise gay relationship is all set to trigger a national debate between forces representing modernity and forces representing old order. The Court said that Law outlawing homosexual acts was discriminatory and ‘violation of fundamental rights.’

The judgement is based on the concept that Indian Penal Code (IPC, 1860) is one and half century old colonial law and does not represent the changing social and ethical order. It is of common knowledge that section 377 reads ‘whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 152[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 offence described in this section.

The Delhi court while hearing a PIL filed by one NAJ, an NGO, has held section 377 as an infringement on the fundamental rights enshrined in constitution (article 21). This judgement is going to have far reaching ramifications in socio-religious life of many Indians and would have profound impact on the legal architecture of this country.

LEGAL IMPLICATIONS- the decision of Delhi High court will have its impact in the state of Delhi only, and other parts of territory would be governed by the same section of IPC, but this land mark judgement would necessitate the Union govt to bring about amendment to the colonial Penal code. This case shall certainly be quoted by the lawyers in related cases in other parts of the country and is going to affect judgement thereto.

Secondly, other sections like 309 of IPC and host other such provisions will be subjected to such societal and legal scrutiny because many people are of the opinion that this 150 years old law should either be scrapped and replaced with a new one or at least amended to such an extent that vestigial instincts of erstwhile order are removed. The legal framework and laws should also change at the same pace at which society is changing, they say, otherwise the laws and customs etc would be rendered meaningless. Thus we can expect in near future, more such land mark judgments or huge dose of constitutional and legal amendments. Our legal system is all set to pass through rigorous tests.

SOCIAL IMPLICATIONS- every change is a painful process, therefore the society is not going to take this change without resentment. The force of status quo is bound to fight back. In fact strong reactions have started pouring in the social panorama. It seems that the society is trying to take recourse to newer ethos and slowly discard older values. It is clash between ‘newer order and older order’ also. On the one hand, we have one India where younger generation is competing with west. This generation wants to move in resonance with the changing world. It aspires to follow new global social, financial, ethical and political order. Globalisation, Liberalisation and Privatisation for them are not just a government policy, but a way of life. They want western type of liberalism and freedom, which unfetters them of all the ethical, moral and social shackles, but on the other hand, there is one group or you can say one generation which is not cosmopolitan and is living with mundane realities. There are people who have to fetch water from distant wells to satiate thirst. They have to collect fodder for their cattle so that they can earn their livelihood. They collect leaves to feed their babies. They don’t even spend 12 Rs/day because they do not have the money to spend. For them, life means continuous struggle for subsistence and not existence. Fundamental rights and gay relationship and many such issues for them are nothing but a joke.

There is also one more group of people in India. These people believe that they are the custodian of social order and society cannot and should not change without their consent and concurrence. They believe that ethical and social values cannot be dictated by anyone other than themselves. This judgement is a jolt on such forces because this imminent change has not come from them but from other sources. They argue that just to satiate the desires of some people who indulge in ‘Unnatural sex’, legal and social order cannot be changed. They have a valid point when they say that ‘will the courts legalise sex with animals then because some people do enjoy animal sex? Some children may enjoy sex with grownup lady, will the court legalise it also?

Thus the coming days these issues are likely to constitute topics of discussion for media and middle class, but legalising gay or punishing them makes no difference for them who do not enjoy even natural sex amidst abject poverty.