SHOCKINGLY SAD NEWS OF GOVERNMENT SUPPORT TO GAY SEX IN SUPREME COURT.

• SHOCKINGLY SAD NEWS OF GOVERNMENT SUPPORT TO GAY SEX IN SUPREME COURT. 

• IS GOVERNMENT MAKING GAY SEX AS STATE POLICY? 

Please see the news item in Times of India dated March 22 and 23, 2012. Government of India told the Supreme Court that it supports the decision of the Delhi High Court which has legalized the consensual gay sex between the two adults. 

This is a big blow to the morals in the society. At worst (if the Government really loves the rule of law so much, its past conduct however does not show) what the Government should have declared that, while it does not have any legal objection, but IT DOES NOT AND CANNOT SUPPORT THE GAY SEX AS A POLICY OF THE GOERNMENT OF THE DAY. Unambiguous impression it gave to the Supreme Court in the hearing of Appeals against the 2009 judgement of the Delhi High court, is that GAY SEX has the support of the Government which virtually amounted to constitute State Policy after the Delhi High Court judgement. In my view, it never told the court that it does not support gay sex. What a pity? 

The Government should understand that it is not only the legal issue involved, it is the vital moral issue in the society. The question is, what kind of advice it wants to give to the general public after the Delhi High Court judgement or the advice it wants to give to the mankind? It would have easily told the court that while it does not have enough material to legally justify the section 377 of IPC enacted during British time way back in 1860, certainly it cannot support gay sex on the moral or ethical plane, as it is against what is considered MORAL and IMMORAL in the Indian society. In my view, the Government has no business to morally support Delhi High Court decision, which itself did not say anywhere that the gay sex is morally correct. All that it did, is to decriminalise Section 377, to the extent that so long gay sex is voluntary and consensual, the parties cannot be punished by the state for committing a crime. We must understand that it could be legally right, because there is no force used to constitute a crime. The court never said that gay sex should be supported by an overt action of the Government as if it is a fundamental right of a common man. 

Legal rights and moral rights are different. What is not crime does not necessarily mean it is morally right. The fact that the High Court did not find the consensual gay sex as crime, that act does not become morally right and what is not morally right need not be a crime. For the smooth running of decent society, there are many moral rights and personal ethical practices which cannot be enforced as legal rights. That does not mean that any Government in its senses discourages such moral rights or moral values, simply because it cannot legally support or enforce in the Court of Law. In fact, many immoral actions not amounting to offenses under IPC are shunned, discouraged and not tolerated by the society and it is the duty of the Government of the day to support all the morals/ethics of the society. 

Surprisingly, the Government argued before the Supreme Court that the Indian society had much greater tolerance for homosexuality. They said temple sculpture depicted group sex, oral sex and sex in every conceivable position and hence it is permitted in the society. I am sorry, I do not admit this. Not everyone in the society is saint, otherwise society would have been a heaven. There are sinners, that does not mean that they should be hanged. There is always aberration in every field of human activity. There are always exceptions and departures. But it does not mean the aberrations, exceptions and departures should become the rule or the norm in the society. 

What the limited point Delhi High Court decided is that the consensual/voluntary sex in PRIVATE among gay adults does not amount to an offence or crime. But, as usual, the Government miserably failed to manage this limited issue thrown up by the Delhi High Court. May be the High Court did its duty strictly under the law, but our Government miserably failed to deal with the consequential moral issues arising from the judgement and did not realize its true role in such situation. By the official stand taken by the Government, I want to know what does the Government want to say to our children, to go ahead with gay sex or other unnatural form of sex and that it will support them? The present support to gay sex virtually has become the State Policy of the Government of the day. This has badly undermined the very institution of marriage and family which have been supported throughout our civilisation. Gay sex is unnatural and not part of the mindset of a normal man and it is an aberration. We cannot tell our children that this is the right thing to do. We cannot build our civilisation on this premises. The Government or responsible citizen should always propagate what is good for the general public, for common man in the long run and should not make the exception or aberration in the society as the rule. Does the government wants to say that there is no need to marry? Promiscuity and gay sex are perfectly alright? Sex of any kind whether natural or unnatural is proper and acceptable? In my view, this will ruin the society in the long run. 

By this move, the government is not decriminalising gay sex, but remoralising what has been considered all along an immoral act. Don’t be surprised if tomorrow Government strongly supports and promote gay sex as a measure of family planning and population control in the over populated nation, or make gay quota in parliament and berth in the cabinet and in government jobs. Or the Government may come out that they did so because of the compulsion of the coalition Government.

Prof. Ram Mallar 

© 2012 

3, Silver Cascade, 110AA, Near Ruby Mills, 

Senapati Bapat Marg, Dadar (West). 

Mumbai 400 028. 

Tel. No.: 2432 28413 (3 lines) 

Email: mlc@mallarlaw.com.