First published on 3rd July 2009
Are LGBTs actually a different sexual group, who are fighting for their rights to be treated equal to others? The only group which I have seen isolated and deprived is that of eunuchs, who earn their livelihood by dancing in social events and, lately, also by extortion and prostitution; they probably fit into the category of transgenders. Lesbians-Gays-Bisexual are not a different group, but, of course, unless they want to establish themselves as such; but, if they do, what is their identity? They say they follow different rules of love, and that’s their identity; but, I wonder, can there be any different rules of love. I think the only thing which differentiates them from the others is their indulgence in “unnatural sex”, which, most of the times, is without much love. Yes, the Delhi High Court is correct in saying that they have the right to privacy, and it’s nobody’s business to know what happens within the confines of their bedrooms; but, unfortunately, it is not often limited to bedrooms: Gays and lesbians often proudly display their different identity (should we call it inferiority complex). This group per se differentiate themselves just on the basis of their sexuality, and, unless they publicize their sexuality, they are in the danger of losing their identity. This is the important question which the decision makers need to look into; i.e., whether the recognition and promotion of a group which indulges in “unnatural sex” beneficial?
I think it is not beneficial. Even when we take the cases of transgenders/eunuchs, there have been stories of forced conversion of normal people into eunuchs; they exist in close mafia like groups and often indulge in gang fights; they follow a very restrictive community culture in which all are subordinate to their respective mentors/gurus, and they follow the command of their gurus without questions. All in all, they live a very unnatural life, restrictive to any kind of creative growth of mind. Similar are the cases of gays. Though they don’t have such restrictive lifestyles, but they do have distorted ones: Most of the full time gays indulge in prostitution; many of them spend most of their time searching for suitable sex partners; only a few like established fashion designers, corporate honchos, etc., do any thing worthwhile other than sex. Actually, the idea of equality of a group whose only differentiating factor is its sexuality while safeguarding the sexual privacy of the group members, is self-contradictory. A group which itself makes its sexuality public can’t demand privacy for its sexual acts: If someone says he is a gay, then the obvious inference would be that he indulges in non-vaginal sex, and this information can’t remain private; this information can remain private only if no group of gays exists, and the consenting individuals can continue to have whatever sex they want but within the confines of their bedrooms; of course, no policemen would ever get to know anything — I wonder if there is any healthy straight couple which doesn’t indulge in non-vaginal sex (including oral sex) once in a while. So, upto this point, Sec 377 is definitely against Article 21 and has been rightly held void, but the recognition of LGBTs as a different sexual group and upholding of their right to equality especially under Article 15, which reads, “the state shall not discriminate against any citizen on grounds only of religion, caste, sex, place of birth or any of them”, is just not understandable. Can there be a different sexual group (biologically) because of a different sexuality (practically)? I think it is not possible. Existence of such a sexuality is an exception, which can’t lead to the changes in the laws of the nature, which only recognizes men and women. The LGBTs do have a right to equal treatment under Article 14, but not under Article 15, because doing so creates an unwanted category of people, who remain always in minority at odds with the majority and never get the right to equality in practice irrespective of the judgments and the laws.
Comment dt. 11.12.2013
Agreed they indulge in “unnatural sex”, but so do straight couples (non-vaginal sex). Can state intrude into the private sexual lives of the people? Or, in other words, if someone goes and makes a complaint to the police that a couple indulges in “unnatural sex” and submits a furtively created sex-video in support, will the police put the couple under surveillance u/s 149 CrPC, so as to peep into their private sexual lives? If not, how can s. 377 IPC be sustained without modifications? There is a clear infringement of privacy in the cases u/s. 377 IPC; the SC has failed to appreciate it, which seems to be an error apparent on the face of the record.
Comment dt 28.01.2014 (reproduction of comment dt. 11.12.13 made on Facebook)
After the fast perusal of the SC Judgment on LGBTs, I am made to believe that the SC has impliedly held that the people don’t have any right to sexual privacy u/a 21 of the Indian Constitution, and any criminal procedure u/s 149 CrPC infringing the same is not undignified and therefore not arbitrary and therefore not violative of a. 14. Now, this is highly regressive: Instead of expanding the scope of the right to privacy, the SC has chosen to limit it further while referring to the past judgments wherein the sexual privacy had not been discussed in the same context as raised in the appeal before the SC. It is a complete blank out to even think that the people have no recognized right to sexual privacy in India. How can the SC even come up with something like this? In a single stroke, the SC has made all the porn videos created by the state legal — yes they do it. This is a highly regressive judgment. Incredible! The parliament not only needs to quash these provisions like s. 377, s. 497 IPC, etc., but also needs to immediately pass a comprehensive law on privacy, otherwise some robe clad eggheads will keep making stupid sermons from behind the safety of the bench.
The LGBT judgment has created a serious crisis of human rights. Sexual privacy is a part of article 21 of the Indian Constitution — one wouldn’t even blink an eyelid before thinking so. But, not anymore, now people in India have no sexual privacy: The state can legally peep into the bedrooms of the people u/s 149 CrPC because s. 377 IPC is a cognizable offence. WTF! Why the many liberals didn’t intervene and left it only to the LGBTs to fight the court battles? LGBTs wanted the recognition of their group identity, which they didn’t get, but they ended up taking away the sexual privacy of all the people in India. Now, the parliament has to pass a comprehensive privacy law before all these parliamentarians face a serious threat to their persons and property from the people at large. There just can’t be any premature ending of the winter session. F-off with financial business; first pass the privacy law and also a constitutional amendment making right to privacy a fundamental right as has been done in the case of right to education.
©2009-2013 Ankur Mutreja