This country is going to the cats, dogs, chickens...

On July 2, 2009, the High Court of New Delhi created history of sorts when it overturned a 148 year old law which criminalized what it referred to as an act of "unnatural sex". Over the past century, various courts had interpreted the Section 377 of the Indian Penal Code differently. Initially it was used only to prosecute coitus per anus (anal intercourse), but later coitus per os (oral sex) and mutual masturbation were also included within the definition of the said act.

The court has held the law as a violation of several articles of our Constitution - Article 14 (right to equality), Article 15 (right to non discrimination) and Article 21 (right to life and liberty). The court has virtually rejected every argument put up by the religious anti-gay groups as well as the government . The judges have said that, "There is almost unanimous medical and psychiatric opinion that homosexuality is not a disease or a disorder and is just another expression of human sexuality". The court has also rubbished the public morality argument put forward in favour of retention of the law, saying "Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong. If there is any type of 'morality' that can pass the test of compelling state interest, it must be 'constitutional' morality and not public morality".

The court has also extended constitutional protections of equality and non discrimination to the LGBT population by holding that, "The purpose underlying the fundamental right against sex discrimination is to prevent behaviour that treats people differently for reason of not being in conformity with generalization concerning 'normal' or 'natural' gender roles..... We hold that sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15". The court also made a fascinating observation about the concept of fundamental rights in general, "Fundamental human rights belong to individuals simply by virtue of their humanity... A Bill of Rights does not 'confer' fundamental human rights. It confirms their existence and accords them protection".

Quite surprisingly, this judgment has done the unthinkable - uniting all religious activists! Hindu, Muslim, Sikh, Christian, Jain and Buddhist leaders have variously called homosexuality as "unnatural", "un Manly", "un Godly", "un Indian", "sin" etc and have asked the government to appeal against the verdict.

A Hindu astrologer Sushil Kumar Kaushal has appealed to the Supreme Court and has said primarily two things - "even animals don't indulge in gay sex", and "tomorrow people might start demanding sex with animals". Baba Ramdev has also appealed calling homosexuality as a disease which can be cured by yoga.

Well the first argument of Sushil Kumar is clearly wrong. There exists tonnes and tonnes of documentation regarding existence of homosexuality in animals. Now we are certainly not arresting gay animals, are we??

Baba Ramdev's understanding of homosexuality is also rather juvenile. Medical practitioners all over the world working in the fields of pyschiatry and psychology have concluded that homosexuality is not a disease. Even so, let us assume jor a second that it is a disease. If so, then tell me, which country criminalizes diseases??

Coming to Sushil Kumar's second argument now. Gays will protest a comparison with zoophilia (bestiality) by saying that "animals can't consent to sex". Similarly, a minor's consent is not a legally valid consent and hence an act of homosexuality is differed from an act of bestiality or paedophilia on that count.

There is, however, one more counter to Suresh's second argument. Gay sex is seen as unnatural by many, because of the "inappropriate usage of human organs". Similarly bestiality is a non-conformist sexual behaviour which involves crossing the species barrier and is therefore seen as unnatural (in the biblical times, "natural" meant "customary" and "unnatural" meant "uncustomary"). Lets not take sides over whether an act of gay sex is unnatural or not. Rather, lets ask ourselves, "are we all behaving in a truly natural way?".

If we truly look at the definition of the "natural", I think we all are "unnatural". Starting with clothes to ear rings, cars, aeroplanes,... everything is unnatural. Marriage itself is an unnatural construct imposed by the society, invented to maintain a certain sense of order amongst its members. It is often argued, that non vegetarianism is unnatural. The human body is simply not suited to eat cats, dogs, chickens, etc.

I can hold an opinion that eating cats, dogs, chickens etc is just another form of perverted behavior as is having sex with them. Probably even worse, since the former involves rearing the animals in a closed cage right from their birth to their death! (Nature didn't intend us to captivate the animals, did it?? If you have the balls, why not go hunt them in the wild yourself??) But to make a law out of my beliefs, violating the fundamental rights of millions of people, would be an act of injustice and inhumanity (by the way, the concepts of justice and equality are also unnatural -- in the real natural world, it is "survival of the fittest")

The truth of the matter is, that the entire human civilization is "unnatural". Homosexual relations as a sexual / psychological orientation are just about as unnatural as heterosexual relations (marriages) are. And about religious people opposing homosexuality, well weren't they the same people burning the heretics, widows, witches, and raping and killing - all in the name of God?

I had only dreamt of the day when religions of the world could unite and stop fighting. Seeing that happening now, and realizing how dangerous this union can actually be, I am only able to conclude - this country is going to the cats, dogs, and chickens!!

Why I am an agnostic..

I was born to a Hindu family in New Delhi, India. I don't consider that as an achievement. Brahmaji didn't ask me if I wished to be born in a Hindu family or a Muslim family, to an Indian couple or a British couple, or like. For that matter, I don't even remember being asked if I wished to be born!!!

Therefore, I don't see why I should believe in Hinduism over all other religions. I don't really see why I should copy my belief system from either my father or my mother. I'd rather be agnostic and tolerate all points of views, than be a demonistic theist and believe that God is going to be really cruel on those who reject him.

Man is an intelligent species, and has since earliest known history, been very curious. He was mystified by many of the unexplainable natural phenomenon around him. He couldn't understand, why would sun always rise from the East? Why would stars form constellations? Why would the wind blow? Why would the lightning strike?

He had no answers to them at all.

But he had to satisfy his thirst. His desperation for answers. So he invented them. Sun became a God, who would travel in chariot above the skies and spread light. Stars and constellations were explained as Godly patterns too. Wind became another God, while lightning became the chief weapon of the king of Gods.

These mythological imaginations were very good for a long time, for man to explain things. But as civilization expanded, as tribes came into contact with other tribes, the concept of God became even more sophisticated, and - pardon me - cruel.

Greek Mythology talks of the famous cosmic war between Titan Gods, and their descendants - the Olympian Gods. The younger Olympian Gods replaced the Titans, and punished their males for their defeat. Atlas was asked to "lift" the Earth, while the more dangerous Kronos was banished to the Tartarus.

If I hadn't told you that this was from the Greek Mythology, you would have probably thought that this is some American fiction, such as the Star Wars series. It doesn't matter that the Greeks actually believed that this war was real.

The Greek religion is now defunct, and instead there are a plethora of other religions practiced by the various human beings of this planet. All the religions have one thing in common - the concept of divine punishment. (No, not the concept of God --- Buddhists don't believe in God)

The concept of divine punishment is an extraordinary one. It has been successfully used over the millenia, to control populations. It has controlled our actions, our desires, and even our thoughts. People were grown into a belief, that their religion was the only true religion, and that it was their religious duty, to establish the supremacy of their faith, even if that requires for them to kill other people. (Unfortunately, this mindset still exists in certain pockets of this otherwise beautiful Earth)

But before the concept of divine punishment could be established, people had to be explained - how they were created, what was the purpose of their creation, and what would happen after their death. Here, God came in handy. It was very convenient to play a messenger to the God, and then expect the people around you to treat you with respect and dignity. These days, we say that "religion has become commercialized". It was worse back then. At that time, it was simply a brute struggle for power.

Atheism / agnosticism, as an ideology was rejected. It could simply not explain things. Even the then scientists, had to agree with the teachings of the Church.

It was only in 1859 AD, that a radical idea, known as "the theory of evolution" was proposed, by a brave Englishman Charles Darwin. It was only 2 centuries after the Church sanctioned persecution of Italian astronomer Galileo Galilei, that this English naturalist dared to question the centuries long held view. In fact, so radical were his ideas, that it was illegal to teach his theory in Philadelphia schools till mid 20th century.

So, what does Charles Darwin have to say?

He simply says, that God (or any other "intelligent being") did not create us. We are the product of natural selection and evolution, of over 4 billion Earth-years!! In that sense, we are not any much different, from a chimpanzee or a whale.

We have all evolved from essentially a single, extremely non-complex, life form.

His ideas, which were backed with solid proofs, totally challenged the then Christian view. In fact, just recently, the Vatican held a conference, looking for ways to integrate Darwinian theory with the clergical teachings. That suggests, that after 150 years, they are still finding it difficult to accept, that human beings are just one of the branches, in the tree formed by random evolution processes.

Darwin only was able to prove that God did not create us. He could not say, whether God existed or not. In fact, no scientist has, as yet, been able to prove or disprove, God's existence.

Many people believe, that we may never be able to conclusively prove things either way, since God (if it exists) isn't bound by our scientific laws, which we believe to be the closest possible approximation of the natural laws.

So, after several thousands of years since the earliest religions, we are finally at a stage, where we can ask ourselves, "did Man create God?". We know for sure that it isn't the other way round. But what could be true, is that God created a basic Universe with all its natural laws, and then left it on its own, taking a non-interventionist stance.

Hmm...

So, if we are to dig deeper, how shall we proceed? Should we go back to the religions, to explain this mystery? Well, I don't think so. And I have a reason for that. Take any religion. Its teachings will, more often than not, contradict itself (besides with teachings of other religions). Given the years of darkness that they have kept us in, these ideologies, in my mind, have lost their credibility.

So then, if scientific laws can not be used to argue for or against God's existence, if religions can not be used to argue for or against God's existence, then what is the other way left?

Well, if I knew of one, I'd have got the Nobel Prize by now!!

Now I come back to my religious belief. I am an agnostic, simply, because I don't know whether God exists or not.

I am not into blind faith, and therefore would never fully agree with any religion, including Hinduism. I don't mind if people want to keep following their religions, but frankly speaking, I don't find religions anymore believable, than fairytales for children!

I personally "want" a God to exist. The idea of a God-less universe is really scary! But that doesn't mean, I would form my beliefs, on the basis of my wishful thinking. I hope my readers too, won't believe in something just because they want to believe in it! They should be able to convince at least themselves, that what they believe in, is indeed absolutely right.

Indian Election 2009 - Varun Gandhi

Indian election 2009 is the largest ever exercise of democratic franchise on this planet. We, Indians are justifiably proud of our status as the world's largest democracy. We are proud that we have been somehow able to maintain our liberties and secular status, despite being one of the most corrupt and inefficiently governed nation. We may have had pogroms against Dalits, Muslims, Sikhs and lately Christians, but that doesn't prevent us from having a Dalit Chief Justice, Muslim Vice President, Sikh Prime Minister and a Catholic woman as the head of the ruling coalition.

Freedom House calls India a "free country", although we are just on the border there [1]. The Democracy Index published by the Economist places India at the 35th position in the league of democracies, and classifies us a "flawed democracy" [2]. Our democracy with all its flaws has still been placed higher than countries like Brazil, Israel, and of course Russia, China, and Pakistan. However, it is not appropriate for us to keep tattering that we are the world's largest democracy, every time someone tries to lecture us.

The preceding few weeks have been pretty bad on the human rights front. Kashmir's government had vowed that they would revoke the infamous and brutal law Armed Forces Special Powers Act [3], and yet the Union Home Minister has defended the law [4]. The Parliament had passed amendments to Criminal Procedure Code to divest the police off arrest powers for simple offenses [5], and yet the stubborn Central Government has refused to notify the amendment which has already received Presidential assent [6]. BJP is raking up its anti Muslim rhetoric, even as Election Commission seems to have been biased. Tamils are dying by the thousands in Sri Lanka with full blessings of the Centre [7]. And finally, the Indian Government thinks casteism is not racism [8]!!

I would devote the rest of the post to the Varun Gandhi issue and the questions it throws up on the age old debate of "free speech" vs "responsible speech". Let me make things very clear here. Free speech isn't responsible speech. No. Not at all. In fact, free speech isn't even meant to be responsible speech!! Speech is absolutely meant to offend.

In countries where free speech is criminalized, democracy can never be successful. In free countries, a balance is usually made. For example, possession of child pornography can not be justified by invoking the free speech provision.

So, how do we ascertain when does speech become no more protected? Usually, speech is criminalized only when it is either defamatory in nature, or when it leads to crimes. Defamation is often treated as a civil offense. Speech which involves crime, or which causes crimes, is treated as a criminal offense.

I am usually biased against the BJP, but I really don't see how BJP's MP-candidate from Philbit Varun Gandhi was arrested under the tough National Security Act, for mere threatening to cut off the hand that attacks Hindus?? He has shown to the world that he is a militant Hindu activist. Fine. But why arrest him??

I have always believed that a liberal democracy has to be tolerant of illiberal attitudes. The illiberals want to diminish our freedoms, including our freedom of speech. Wouldn't it be a great paradox, if we, in order to deter the fascists, ourselves go by fascist ways?? "National Security Act"??? It seems that the liberals of this country have already conceded defeat to the illiberals!!

Even the Election Commission has clearly gone beyond its Constitutional obligations. It suggested BJP to drop Varun Gandhi's candidature, thus playing the role of the prosecutor, the judge and the jury [9]. They said that that Varun Gandhi's speech is even more offensive than what was aired on TV [10]. Well,.. I am not entirely convinced. Why are they censoring that part of the speech, and not releasing it in full, so that us commoners could know what's going on? By the way, is it just me who thinks EC was biased in favour of RJD's Laloo Yadav, by not taking action against his speech, where he calls for "a roller to be moved over Varun Gandhi" [11], while completely ignoring Gandhi's assertions that the CDs were fake [12]. Finally, there is absolutely no evidence that Varun Gandhi's speech, actually lead to any communal violence.

There are many things that are criminalized in this country, and are protected in most Western countries. Burning a piece of cloth... err.. the national flag, for one. One can be sent to behind bars for upto 3 years for such an "anti national act" [13]. The law on public obscenity too, is very unclear, and highly misused. In fact, it borders towards being unconstitutional!!

I already had a poster saying, "don't criticize Saudi Arabia" and "don't support gay rights, for this is India", in an earlier blog. If people can't even be receptive of this mere differences of opinion, then may I daresay, India is full of educated illiterates!!

Why should a set of Random Functions control my thoughts??

Readers of my earlier blogs will remember, that in my last blog I had passionately appealed for equality and fundamental human freedoms, devoid of all prejudices of caste, creed, religion, sex or sexual orientation. I had also for a free exchange of information and ideas.

I had a debate with a friend on some of these issues. He agreed to my views on some of the issues that I raised, while he didn't agree on many others.

I will keep his identity a secret, but let me tell you first that he is a staunch nationalist. We debated for a while, and I asked him to "broaden your horizons". He was however adamant in his views. He suggested that "all gay people should leave India", although he couldn't provide any reasoning for the same. He couldn't even justify how his claims over India were more genuine than the claims of sexual minorities or of the people who drink alcohol.

Our political ideology is a sum-total of various parameters of our life. Our place of birth, time of birth (not speaking of in an astrological sense), sex, parents' political beliefs, parents' religion, caste / ethnicity, schooling, language, peer group, exposure to media, travel to foreign lands, and other life experiences altogether define the person that we are, of which a characteristic property is our socio-religio-political beliefs.

I don't define myself as a Hindu or even an Indian. I don't believe in the ideologies of religion, culture, or nationality. For that matter, I don't even believe in humanity!

What I believe in, is science and what I value, is respect for all life forms.

Why should the fact that I am born to Hindu parents in a Hindi speaking Punjabi family in North India, define my political thoughts?? I didn't have any control over the fact, that in the year 1986 AD, Delhi happened to be included within the 'boundaries' of a 'country' known as the Republic of India?? Why should the factors, that I didn't have any control over, act as a glass ceiling to what I am supposed to think!!

I didn't choose to be born this way. For that matter I could have been born as a fish!! Had I been any luckier, I could have been born as Bill Gates!! I could have been born as Pakistani Christian, or a Chinese Muslim, or an American Bahai, or a South African Jew, or as an Egyptian atheist. Each of these cases, howsoever likely, are definite possibilities.

So if I were a Pakistani Christian, should I think that Pakistan's rights over Kashmir are more justified than that of India's, or should I be thinking that a majority of Pakistanis are going to hell??

This is the most basic problem of society. We never think, beyond what we are 'supposed to think'. We never challenge the 'accepted ideologies'. We never do anything 'unconventional'. We never talk about 'social taboos'.

We are never daring enough!!

It is precisely this line of thought, which kept most of the world trapped in the Dark Ages, for several several centuries.

Right now, we are way past the Enlightenment Age. Most of us, are in the Information Age, and have the latest scientific discoveries and inventions delivered to our doorsteps!!

Why do still we think that God created the world in 7 days?? Why do we still think that Adam and Eve were the first human beings to dwell this planet?? Why do we still think that Jews and homosexuals, are going to burn in hell?? Why do we still think, that 'my God is greater than all others', or that 'my religion is the best'??

Well!!, Hinduism is a 5000 year old religion. It has to be the greatest!! Right??

Wrong!!

The history of Hinduism, or for that matter any organized religion, is contained in just the last few seconds of the last day of the last month of the 'cosmic calendar' of our Universe!!

We have all originated from the same common ancestor - a bacteria. The Earth as a planet had borne life, since at least 4 billion years before the first humans were born. We are just one of the branches, in the great Darwinian tree of evolution. Our Sun is just one of the billion trillion stars, thought to be a part of this Universe. Many of the other Earths, revolving around other Suns, could contain far more sophisticated life, than our own human civilization!!

I know my views could be attacked by someone, who could argue, "Fine that you don't love your religion or your country, because they were factors beyond your control. Why do you love your parents then??"

I don't.

Don't get me wrong. I DO love my parents.

What I meant was, that I don't love my parents JUST BECAUSE they gave me birth!!

My parents are some of the most fantastic people that I could ever know. I am far more open with them, than I can ever be with the closest of my friends. They are some of the most rational people, and even though we disagree on several issues, ranging from which party to vote for, to the issues of religion, we respect each others' thoughts and know how to agree to disagree and yet love each other.

In fact, that is the level of tolerance which predates even my birth. My mother and father, both doctors by profession, belong to some of the least known sects of Hinduism, and both don't agree on almost anything. My father was in fact, an atheist during his youthful years, before he returned to religion.

Worshipping the same God, with quite opposing sets of beliefs, I believe, had the effect of making me more rational than I could have been, had my parents belonged to the same sect.

Surely, both can't be right in their own way. Someone's got to be wrong somewhere. But then, who is the unlucky one? If my father is unlucky, does it mean that my mother is worshipping God the right way? What if both are actually unlucky.

I chose to develop an independent thought, question what was told to me, disagree openly with my parents' opinion, etc. We accept and understand, that we are all, very different people. For what its worth I'd like to mention, that there are far more ways to arrange the DNA strands, than the actual number of humans ever to have walked on this planet!!

All I ask from my blog readers, is to develop a rational mind, free of any artificial limitations, such as religion, culture, or nation. Let us not forget that the concepts of religion, culture, or nation, are not even nearly as old as human beings themselves.

We are a wonderful product of nature. We are a highly intelligent, organic machine, which can think higher than even the skies!! So let us not artificially imprison our thoughts with a set of completely unknown random functions, and return to an another spell of Dark Ages. We are more evolved than the vegetables are. Let us not mock the millions of years of human evolution, by wasting our lives and thoughts away!!

Let us "live-and-let-live".

Is the Delhi High Court emerging as a liberal bastion in post globalized India?

India of today, is fundamentally different from my grandfather's India, my father's India, or even the India that was 10 years ago.

An unprecedented balance of payment crisis emerged in the early 1991 India. It was aggravated by liquidity crisis experienced in mid January 1991 and another in late June 1991. On both occasions, the foreign exchange reserves dropped significantly and the government had to resort to measures, such as using its stocks of gold to obtain foreign exchange. Having resorted to these measures, the government was able to avoid a default in terms of meeting its debt service obligations and financing of imports. Subsequently, the government embarked upon a comprehensive program of economic reforms. These reforms would change the way India would work, live and think for years to come. [1]

In this blog, I would explore how our economic reforms, have prompted changes in the society and in the attitudes of judges.


Case 1: Judges let women bartend

Delhi, being the capital of India, and supposedly a liberal city, didn't allow women to serve alcohol. The 1914 law, which dates back to the colonial era, based its reasoning on the assumption that women are an inferior sex, and can't protect themselves from unruly customers.

The law went unchallenged for decades after independence. Not perhaps, because the judges were themselves seen as conservative people, but because women themselves would justify the ban. Women never felt that this law amounted to sex based discrimination, illegal under Article 14 of the Constitution. [2]

However in post globalized society, the urban educated women couldn't take this piece of sexist, paternalistic legislation any longer. Several aspiring female bartenders, along with the Hotel Association of India, challenged this law before the Delhi High Court.

They were not disappointed.

Justices Mukul Mudgal and HR Malhotra agreed that this law violated their rights to equality, and choose their own profession. [3]

"It is undeniable that women have excelled in the hospitality industry not only in this country but worldwide," the judgement said.

"And the feminine touch indeed lends grace and elegance to the hospitality industry, which grace and elegance is not inherently suited to the male disposition," it added.

But before the ban could be withdrawn, it was back in the courts. Several independent people, supported by the Delhi Government challenged the High Court's decision at the Supreme Court.

The Delhi Government argued that Delhi is a "rogue city" and that its men can't "hold their drinks". [4]

It supported its argument by citing the case of Jessica Lall, a model and a bartender, who was shot dead in 1999 by a group of men after she refused them drinks.

"I think it is silly - this is a government which can't basically enforce law and order and wants to create gender division by saying that Delhi men can't hold their drinks. It defeats logic and intelligence", lifestyle commentator Suhel Seth said.

The Supreme Court agreed that this law was discrimination, and upheld the Delhi High Court's ruling, in a decision which was reported worldwide. [5]

This decision of the Supreme Court was later followed up by other courts in the country. Justice D. V. Shylendra Kumar of the Karnataka High Court quashed rule 9 of the Karnataka Excise Act 1965, which imposed similar restrictions on women in that state. [6]

Needless to say, the Karnataka government decided not to appeal.


Case 2: Nudity isn't obscenity, it's just art!

Maqbool Fida Hussain, the celebrated Indian painter, has often come under the target of fudamentalist Hindu groups, who have hijacked Hinduism and created an Indian version of the Taliban.

His crime: Being a Muslim, how dare he paint imaginary creatures in the nude!

Except that those imaginary creatures are part of a religious belief in a certain country. For some people, this country is a 'living deity' (Bharat Mata), blasphemy of whose, according to them, is a higher crime than raping and killing thousands of innocent Muslims in the fields of Gujarat.

Welcome to India!

It wasn't just the Bharat Mata that offended the Hindu zealots. They also protested against nude paintings of Hindu Gods and Goddesses, made by the nonagenarian painter.

Ironically such paintings, are already a part of India's ancient traditions. The temples of Khajuraho, amongst others, as well as the Kamasutra, have graphic depictions of sex.

While the more extremist variety of protesters sent the poor painter death threats, the lesser ones chose to threaten him by abuse of the process of law. The colonial era, ambigious, Section 292 of the Indian Penal Code was the basis of their legal complaints. [7]

The complaints were filed in different cities all over the country, making the painter run from pillar to post, defending himself before several law courts.

Taking pity on the eminent artist, the Supreme Court of India transferred all the cases against him, to a court in New Delhi. [8]

Inspired by his legal success, Hussain filed a plea before the Delhi High Court judge S. K. Kaul, requesting him to quash the criminal proceedings pending against him.

The learned judge obliged Hussain.

"Art is never chaste. It ought to be forbidden to ignorant innocents, never allowed in contact with those not sufficiently prepared. Yes, art is dangerous. Where it is chaste, it is not art", Justice Kaul wrote in his judgment, quoting renowned artist Pablo Picasso. [8]

The judge also writes, "Democracy has wider moral implications than mere majoritarianism. A crude view of democracy gives a distorted picture. A real democracy is one in which the exercise of the power of the many is conditional on respect for the rights of the few... In real democracy the dissenter must feel at home and ought not to be nervously looking over his shoulder fearing captivity or bodily harm or economic and social sanctions for his unconventional or critical views. There should be freedom for the thought we hate. Freedom of speech has no meaning if there is no freedom after speech. The reality of democracy is to be measured by the extent of freedom and accomodation it extends."

The judge concluded by saying, "I have penned down this judgment with this favourent hope that it is a prologue to a broader thinking and greater tolerance for the creative field. A painter at 90 deserves to be in his home – painting his canvass!"

This famous judgment prompted Shashi Tharoor, former UN Under Secretary General, to write two Sunday columns in the Times of India. [9] [10]

Needless to say, the Supreme Court threw out the appeals by the "moral brigade" against Hussain. [11]

What else could they have done!


Case 3: You may now kiss the bride!

India's ancient culture has always been filled with graphic details of the art of lovemaking. Kissing was an important part of that. In the Kamasutra, the scholar Vatsayana devotes a chapter on the art of kissing. He painstakingly details some 30 types of kisses - straight, bent, turned, press, nominal and throbbing are some among them. [12]

In September of 2008, while a 28 year old man and his 23 year old wife, were waiting for their lawyer to get them a marriage license at a Dwarka metro station, the police arrested the duo on charges of obscenity.

The case was filed under Section 294 of the Indian Penal Code (the old, colonial-era law as i previously mentioned). Bail was granted from the police station itself. The police, were however, determined to press obscenity charges.

The duo were "sitting in an objectionable position near a metro (railway station) pillar and kissing due to which passersby were feeling bad", as per the police chargesheet.

If convicted, both offenders could face a prison term for up to 3 months, or a fine, or both. [13]

It wouldn't be the first time people would be charged with obscenity for kissing. In 2005, an Israeli couple were fined Rs 1000 (about $22), for kissing after getting married in a Hindu ceremony. The priests were offended in the traditional, culturally-rich state of Rajasthan. [14]

But Justice S. Muralidhar quashed the proceedings. [15]

He expressed shock at the police action, saying "it is inconceivable how... an expression of love by a young married couple would attract an offence of obscenity and trigger the coercive process of law"

His judgment created cheers in India, even though some people were disappointed in that, only kissing by married couples was ruled as being not obscene.

Nevertheless, at least the first step in this direction has been taken. The judge concerned had the case of a married couple at his disposal. Maybe some day, another judge might rule that public kissing by unmarried couples is legal too.

The moral brigade would definitely be red-faced!!


Case 4: Depictions of smoking can't be banned

Smoking is a very harmful habit, and nobody (not even smokers) disagree with the assertion, that it must be discouraged. Smoking is a serious health risk, and can lead to different types of cancers and even heart attack!

With this reasoning, Union Health Minister Anbumani Ramadoss has launched an anti smoking drive all over India. Recent surveys have revealed alarming facts. Nearly 17% of students under 15 were found to be tobacco users. [16]

However in his zeal against smoking, he passed a ridiculous order in 2005 which was far beyond his statutory powers that the Parliament has trusted him with. Health Nazist as he is also known, he banned depictions of smoking in cinema, including non advertising, non glamorizing depictions.

That order briefly created a controversy within the cabinet, as the I&B Ministry was caught up in the middle. However, the I&B ministry quickly refuted any impression of a rift with the Health Ministry, and thus the ban was firmly in place. [17]

The movie industry was up in arms against the Centre for this unjustifiable encroachment on their artistic freedom. Their argument was simple: if smoking is legal, how can its depiction be illegal?? For that matter, rape and murder are NOT legal in India, yet their depictions are.

Director Mahesh Bhatt challenged this order before a Delhi High Court bench. While Justice Mukul Mudgal agreed with the petitioner, Justice Sanjiv Khanna felt that the government was within its right to ban smoking scenes, and referred the issue to the Chief Justice's court. [18]

Justice S. K. Kaul was called upon to play the "umpire judge" and standing upto his liberal reputation, he, quashed the Health Ministry order. [19]

"Directors of films should not have multifarious authorities breathing down their necks when indulging in a creative act", honourable Justice Kaul held.

The judge quoted a famous philosopher John Stuart Mill, "The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant." [20]

There is still confusion over the Health Minister's reaction to the verdict. Some reports say that he is planning to file an appeal in the Supreme Court, while some say, he has rescinded from his position.

Nevertheless, he has been told in clear-cut terms, that freedom of speech is non-negotiable.


Case 5: Gay Pride!

2008 was the year when homosexuality suddenly came 'out of the closet' and entered the 'public domain' in India. It was the year of first gay pride marches, as also Bollywood movies Dostana and Fashion.

But 2008 was also the year, of a major public dispute between the Home Ministry and the Health Ministry. The bone of contention is a petition filed by gay rights activists (from the Naz Foundation), challenging the constitutionality of Section 377 of the same old piece of crap (you guessed it right... the Indian Penal Code) because it criminalizes 'unnatural sex', which is usually interpreted to mean, coitus per os (oral sex) and coitus per anus (anal sex). [21]

It is on old British era law, which does not differentiate between 'consent' or 'force', 'adult' or 'child', 'private' or 'public'. Conviction for any such sexual act, can lead to anything between a fine to life. While in theory it can be used to punish fellatio between a straight couple too, but in practice only gays are known to be harassed under this piece of legislation.

How ironic that the land of Kamasutra has forgotten about its glorious and tolerant past, including religious depictions of homosexuality. [22]

Such relations invite ridicule, contempt, hate and even violence in modern day India. Adding insult to injury is the law, which defines such relations as a criminal offense.

Vikram Seth, author; Swami Agnivesh; Soli Sorabjee, former Attorney-General; Aditi Desai, sociologist; Nitin Desai, former UN Under-Secretary General; Captain Lakshmi Sahgal, freedom fighter, Padma Vibhushan; Siddharth Dube, author, and many others [23], wrote an open letter in 2006.

"To the Government of India, Members of the Judiciary, and All Citizens,

To build a truly democratic and plural India, we must collectively fight against laws and policies that abuse human rights and limit fundamental freedoms.

This is why we, concerned Indian citizens and people of Indian origin, support the overturning of Section 377 of the Indian Penal Code, a colonial-era law dating to 1861, which punitively criminalizes romantic love and private, consensual sexual acts between adults of the same sex.

In independent India, as earlier, this archaic and brutal law has served no good purpose. It has been used to systematically persecute, blackmail, arrest and terrorize sexual minorities. It has spawned public intolerance and abuse, forcing tens of millions of gay and bisexual men and women to live in fear and secrecy, at tragic cost to themselves and their families. It is especially disgraceful that Section 377 has on several recent occasions been used by homophobic officials to suppress the work of legitimate HIV-prevention groups, leaving gay and bisexual men in India even more defenceless against HIV infection".

The full letter is available here.

Amartya Sen, the famous Nobel laureate, added, "...Even though I do not, as a general rule, sign joint letters, I would like, in this case, to add my voice to those of Vikram Seth and his cosignatories. The criminalization of gay behaviour goes not only against fundamental human rights, as the open letter points out, but it also works sharply against the enhancement of human freedoms in terms of which the progress of human civilization can be judged..."

The Central Government is sharply divided over continued criminalization of homosexuality. While the home ministry thinks that homosexuality is immoral, the health ministry's affidavit (through NACO) recommends decriminalization, because the law hampers HIV work. [24]

So much so, that the dispute between the ministries, lead to the Prime Minister intervening in the case, and the Cabinet deciding that they "will accept what the court decides". [25]

Even as the hearings were going on, gay and human rights activists marched into the streets of Delhi, Bangalore and Calcutta, demanding their right to love who they wanted to. They not only evoked a positive reaction from the Labour Minister, but also the High Court ruled that gays do have a right to march. [26] [27]

The Delhi High Court, has since then, given a patient hearing to the cause of gay rights, and has made some sensible remarks. "If you belong to the 'untouchable' category, you suffer a disadvantage in every aspect of life. The effect of criminalisation (of homosexuality) is like treating you as a member of a scheduled caste", said Chief Justice Shah. [28]

The court also rejected government's attempts to produce religious texts as an argument in the case, and demanded any "scientific evidence to show that gay sex causes harm" (which is non existing). [29]

The hearings in the case are now complete, and the judges have reserved their verdict. It is important to realize the significance of Chief Justice Shah's statement. Criminalizing of homosexuality, is indeed akin to the ancient practice of untouchability, because recent scientific evidence suggests that sexual orientation is decided pre-natally, and is affected by several factors (such as number of older brothers). [30] [31]


Finally,

The whole notion of Indian society and culture has changed in the past 20 years, and one decision pending, this is also reflected in the mindset of our judges. Our courts have uniformly upheld our constitutional rights, and the Delhi High Court is a shining example of that simple fact. But we can not always be dependent on the courts to enforce our rights, and we must remain ever vigilant to any possible trespass in our private autonomy by the State. Scars of the Emergency haven't yet healed, and therefore we must be wary of overt nationalist, fascist, and divisive politics. History tends to repeat itself, and it would be foolish of us, to not learn from the past!!

I thank and congratulate those of you, who have bothered to read through the whole blog. :-)

Don't kill this man!!

The 12th century Sephardic legal scholar, Moses Maimonides, famously wrote, "It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent man to death." He argued that executing an accused criminal on anything less than absolute certainty would lead to a slippery slope of decreasing burdens of proof, until we would be convicting merely "according to the judge's caprice." [1]

Despite the emergence of nation-states and improvements in policing, many countries retain the death penalty. It is not only dictatorial regimes like China and Iran, but also democracies of USA, Japan and India, which execute people for various offenses.

In India, the death penalty was the default punishment for murder, up until the 1970s. However, a 1983 ruling by the Indian Supreme Court, mandated that the death penalty be awarded only in the "rarest of the rare" cases. What constitutes "rarest of the rare" is still left to the discretion of the judges (jury trials were abolished in India in 1960), and usually means murder preceded by torture or rape. Such acts of violence are punishable with "hanging till death" in the Republic of India. [2]

On December 29 2006, the residents of Noida, along with all other citizens of India, were shocked as the police recovered one after another, the remains of dead children and women, from a municipal water tank behind house D-5, Sector 31 at Nithari. The house belonged to a rich businessman Moninder Singh Pandher, who used to live there with his housekeeper Surender Kohli. The infamous residence was labelled "the house of horrors", and the government sacked some low ranking police officials, as the allegations of "inaction" surfaced. [3]

The case was quickly transferred to the CBI (Central Bureau of Investigation) by a nervous state government who wanted to wash its hands "off the case". The CBI conducted brain mapping and narco analysis test on both suspects, and formal chargesheets were filed later.

Rimpa Haldar, a 14 year old girl, who was just one of the 19 victims of this ghastly crime, was raped and murdered. The court of special CBI judge Rama Jain was to try the duo for the crime. CBI counsel argued that Kohli was a rare combination of a man affected by paedophilia, and necrophilia, and had no chance of reform. He is a threat to the society and should be sentenced to die, the CBI argued. [4]

However CBI couldn't produce any much evidence against Pandher, who as the owner of the house, was away when the incidents took place. "This is borne out from the documents, statement of witnesses and mobile phone records."

“Investigation has revealed that JCB organized an annual conference of its dealers in Gold Coast Australia from February 1 to 4 of 2005,” the chargesheet says. “On January 30, 2005 accused Moninder Singh Pandher left IGI Airport New Delhi by flight no.SQ 407 for Australia and reached there on 31.1.2005.” [5]

According to the CBI, Pandher left Australia on February 14 and reached IGI Airport, New Delhi, only the next day — almost a week after Rimpa disappeared. “The above journey has also been confirmed by the Foreigners Regional Registration Officer, New Delhi vide its letter dated 16.4.2007. The immigration stamps affixed on his passport at IGI Airport and Australia also establish his departure and arrival at the places mentioned above,” the CBI said.

Nevertheless, the CBI did prosecute Pandher for immoral trafficking, bribery, etc.

It is often said that "kanoon andha hota hai". Blind Justice is the theory that the law should be viewed objectively. Completely ignoring the fact that the prosecutors didn't charge Pandher with having committed the murder, the special CBI court of Rama Jain convicted him of murder and also sentenced him to die.

Not the fact that Rama Jain didn't believe in the CBI. She accepted the CBI's theory that Pandher wasn't even in the country when the murder took place.

So what bizarre logic makes Rama Jain think that Pandher is guilty of murder??

Frankly speaking, it was Judge Jain's personal belief. "Pandher must have known about the murders", "How is it that the person living in the house (D 5, Sector 31) did not know about these happenings?"

Quite understandably, most of the Indian media didn't take up the possibility that Pandher might be an innocent man, whose only guilt was that he lead an immoral life (call girls visting often). Saying such a thing over national television would be tantamount to loss of TRPs, which our hyper competitive media companies can not afford.

This case reflects two big underbellies of India. One, is that the media isn't always fair. Two, is that judges can get swayed in by personal sentiments and public opinion. It is clear that Judge Jain ignored one of the most basic principles of Justice - "Blind Justice". She has ignored established law, that in order to convict a free man, requires that his guilt be proven beyond reasonable doubt. It might seem that in doing so, she has actually violated the law herself.

While it would seem, that Pandher is being made a sacrificial goat, for a blood thirsty India, it comes that voices of sanity still do exist. Retired Justice R S Sodhi, of the Delhi High Court, now a lawyer, who has himself sent to the gallows quite a many convicts, including the murderer of Priyadarshini Mattoo, has expressed shock at this judgment.

“This judgement is nothing short of judicial abuse. You cannot send people to the gallows on the basis of public opinion. One has to judge him or her in accordance with legal provisions. One must also abide by the principles of the rule of law, which, I think, has been given a go by in the present case" says Sodhi. [6]

To the accusations that Pandher led an immoral life, lawyer Sodhi says, "sleeping with women cannot be held a criminal offence. That is the only thing reportedly established during trial". He adds, "There is no evidence that can directly link Pandher to the conspiracy and a mere suggestion that Pandher would have been in the know of these horrific crimes was not enough to invite a conviction, let alone a death penalty".

Now Sodhi has agreed to defend Pandher at the Allahabad High Court. He can not be executed unless his death sentence is upheld all the way upto the Supreme Court. Given that no "real case" exists against him (sleeping with call girls is hardly a crime), he may walk free soon.

If that happens, then this could become a classic case in the point, for death penalty abolitionists, like myself.