Voice from the Rooftop

Blog of Vincent Augustine D'Souza

Consenting adults and law

There are people who say what consenting adults do in private should not be covered by law. This is mainly in reference to Section 377 of IPC which is under litigation in Supreme Court.

By that logic prostitution, sale and purchase of narcotics and psychotropic substances and illicit liquor, corruption, polygamy, transmission of pornographic material and many others matters that take place between consulting adults will be out of the scope of law. Drug traffickers can claim they have right to life and liberty to sell heroin, marijuana and such things to consenting adults in private and they have right to equality. The state will have no right to legislate on marriage, divorce, alimony and child custody. Also concubinage, live-in relationship and palimony will be out of the legal purview.

What happens if a man who is married does not reveal his marital status and marries another woman? What happens if a woman has sex with a man because he promises her something and later he does not keep his promise?

What about doctors and parents who after sex determination test terminate the pregnancy of a foetus knowing it is female? India’s sex ratio is going down. Medical termination of pregnancy is not a crime. Female foeticide is a crime.

Some blame Thomas Macaulay for everything what they claim is wrong with India including Section 377 of IPC. Thomas Macaulay came to India in 1834 and left India in 1838. IPC was promulgated in 1860.

Some give examples of Khajuraho and Ajanta-Ellora as examples of Indian culture and civilization. It is like saying Jarawa women who do not cover their breasts as representative of all Indian women. Khajuraho and Ajanta-Ellora are exceptions. If what they show is a sample of what is Indian then all temples would have shown them.

A vociferous minority supported by sections of media attacks people who stand for heterosexuality. Those who speak of freedom of speech criticize Ghulam Nabi Azad and Baba Ramdev when they exercise their freedom of speech.

Some wrongly speak of gays and lesbians being married and having children. They are bisexuals. There is nothing hereditary being gay. If someone is gay he would not have had children.

It is not for judges to declare what should be the law. Their job is to deliver judgment as per law. Judges who cross their limits do lot of damage.

It is wrong to call gays and lesbians a minority. Minorities are either ethnic, or religious or linguistic. All types of criminals can claim they are a minority. Terrorists can claim they are a minority doing a noble job but misunderstood by the majority. Bandits can claim they are a minority.

If Supreme Court judges do not know what is sex according to order of nature it is penile vaginal intercourse. Terms like unnatural sex have definite meanings acquired over the years. It is not for judges to change the meanings. It is for legislatures to change the law.

The government of India wants to run with the hare and hunt with the hound. On 23/2/2012 Additional Solicitor General P. P. Malhotra told the Supreme Court Bench comprising Justices G. S. Singhvi and J. S. Mukhyopadhyay “The issue whether to retain or not to retain Section 377 IPC was considered by the Law Commission of India in its 42nd report and it observed that Indian society by and large disapproves of homosexuality and disapproval was strong enough to justify it being treated as a criminal offence even when adults indulge in it in private.” About privacy he said “Whose privacy is being disturbed? Nobody’s privacy is being disturbed. Privacy is not an absolute right and is always subject to restriction. It is an offence.” Then home ministry came out with a press release that the government is neutral on the issue. It had asked Attorney General to assist the Supreme Court. May be if Shahi Imam or head of Darul Uloom wants to retain Section 377 as it is the government will take a stand in favour of retention.

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