October 27, 2020
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S 377 Judgment 'A Stain' On SC: Vikram Seth

S 377 Judgment 'A Stain' On SC: Vikram Seth
outlookindia.com
1970-01-01T05:30:00+0530

Vikram Seth on NDTV's The Buck Stops Here programme presented by Barkha Dutt, responding to today's Supreme Court judgment which reversed the 2009 Delhi High Court judgment that had read down Section 377 and decriminalised homosexuality:

Today is a great day for prejudice and inhumanity. And a bad day for law and love. But law develops and love is resilient. And prejudice and inhumanity will be beaten back. And Law and love will prevail. The judgement is a disgrace.

Is he hopeful?

I am hopeful — not immediately, not the long run, but over the medium run. 

This is a judgment made by two people, two judges, overturning the judgment of the High Court, also a division bench, a two person bench. It overrules a judgment of the High Court which confirmed— does not confer— but confirms the fundamental rights of a group of citizens.  

One other time that I can remember, and this has happened before, as well. There was a judgment during the emergency, the habeas corpus judgement where a full bench, a five member bench of the Supreme Court, brought disgrace upon the institution by again taking away the fundamental rights of Indian citizens that had been confirmed by the High Courts.

All I hope is that this judgment will, within the precincts of the Supreme Court, be cured, or revised or overruled by a larger bench so this stain from the annals of Indian jurisprudence and Indian human rights and our Constitution is washed away.

On how difficult and important it is for him to come out and to speak on his personal life now [Dutt also quoted "Dubious" an old poem by Seth, which was actually written much before his public coming out, so to speak —

Some men like Jack and some like Jill
I’m glad I like them both but still
I wonder if this freewheeling
Really is an enlightened thing,
Or is its greater scope a sign
Of deviance from some party line?
In the strict ranks of Gay and Straight
What is my status: Stray? Or Great?

[Also See this 2006 interview to Outlook: "It Took Me Long To Come To Terms With Myself. Those Were Painful Years"]

Well, I am not a very public person. I don't often talk about my private life. I write about things, either poetry or prose. And it isn't only about gay rights that I have spoken. I have spoken about Apartheid in South Africa. About the Babri Masjid. About what happened in Tiananmen. 

But in this case I felt it was incumbent on me to speak out clearly. Because although I may come out from a fairly liberal family, which anyway had a hardtime accepting things, the fact is so many of us live in countryside and small towns, and come from families that are less broad-minded and would live lives of quiet desperation, even trying to come to terms with themselves, let alone trying to come to terms with people they love, people they have to deal with, society in general. So I didn't think it was right that, because I am too some extent protected by it, that I shouldn't speak out. It was as simple as that. I don't think there was any thing particularly admirable about it... I would not have been able to live with myself if I hadn't. Now as for the question of being gay or being partially gay, someone who's partially gay IS gay. If you love a man, being a man; if you love a woman, being a woman; the fact that you love someone across the gender boundaries so to speak, doesn't make you any the less gay. But people can use any kind of labels they like. But that's my personal issue. I wish you would clear off the question of my personal issue on to the question of how the judges could have taken away, the rights, the prerogatives and the dignities of 5 percent-- of the 50 million Indians, who yesterday were not criminals but today are criminals?

Worse, it gets worse than that. Consider what the law says, this section 377. If a man has consensual oral sex with his wife, he, like any gay person, can be sentenced to imprisonment for life, or imprisonment of either description— rigorous or simple— that can extend up to 10 years, and also be liable to fine. But of course this is not how the law operates. It is used by people indiscriminately again gay men so that we become a government not of law— of people, of decision makers. And also it operates against women, although the courts say nothing. Sec 377 says nothing. Women who have been happily living together for years have been forcibly torn apart by their families or the police at the instigation of their families. It is a law that takes us back to a position of barbarism.

It is squarely within the rights of the Supreme Court to decide on the rights of equality, and equal treatment under law, non-discrimination and the right to live your life should have been upheld. Don't fling it back to Parliament.

Is he apprehensive that now that it is back with Parliament, we are never going to see it changed.

Well, we will have to wait and see. It is back with Parliament, but I hope the Supreme Court itself, with a larger bench, takes cognisance, of what a stain this would be on them. One can think of a case like the Dred Scott case, where slaves were allowed to be returned to their masters. Or one can think of ADM Jabalpur, where the people were not even allowed to challenge the taking away of their life and liberty by an arbitrary judgement by a subdivisional magistrate. These are cases where the institution has bitterly regretted what has happened and we hope that this will not happen. Because, I hope you know that I come from a legal family, my mother was the first woman chief justice of an Indian High Court. I have the greatest respect for law. Not only love, decency, humanity, tolerance and constitutionality that has lost today— but the law itself

Does he feel like a criminal today?

Well, I wasn't a criminal yesterday but I'm certainly a criminal today and let me say on your channel that I propose to continue to be a criminal. I do not propose to take the permission of their lordships in deciding who to love or who to make love with.

But I am a case of someone who has come to terms with themselves, who is happy with who I am, I am comfortable in my family, in my circle of friends. But I would ask you to consider people who are not in this position of living with a fairly enlightened family, who are bulliable, who can be made to live a life of quiet desperation in small towns in India, in smaller-minded families, who are bewildered and bothered. For them, this judgment comes as a huge threat. Consider the possibility of blackmail, of police harassment. This judgment cannot be allowed to stand

We have all lost as Indians today. But we will get our rights back. As Indians, not just as men, women, gay, straight, whatever.

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