Wednesday, May 10, 2017

Day 17 - My Son is Gay

My name is Leila,
Leila Seth. 
I am 83 years old. 
I have been in a long 
and happy marriage 
of more than sixty years 
with my husband Premo, 
and am the mother 
of three children. 

The eldest, Vikram, 
is a writer. 
The second, Shantum, 
is a Buddhist teacher. 
The third, Aradhana , 
is an artist and film-maker. 
I love them all. 

My husband and I 
have brought them up
 with the values 
we were brought up with 
- honesty, courage 
and sympathy for others. 

We know 
they are hardworking 
and affectionate people, 
who are trying to do 
some good in the world.

But our eldest, Vikram, 
is now a criminal , 
an unapprehended felon. 
This is because , 
like many millions 
of other Indians, 
he is gay; 
and last month, 
two Supreme Court judges 
overturned the judgment 
of two Delhi high court judges
that, four years ago,
homosexuality . 

Now, once again, 
if Vikram falls in love 
with another man, 
he will be committing 
a crime punishable 
by imprisonment for life 
if he expresses 
his love physically. 

Dear Supreme Court,
Your judgement mean
that he would have to be 
a celibate 
for the rest of his life 
- or else leave the country 
where he was born, 
to which he belongs, 
and which he loves 
more than any other?

I myself have been a judge 
for more than fourteen years 
And I have great respect 
for legal proprieties 
in general, and would not 
normally comment 
on a judgment, 
but I am making 
an exception in this case.

I read the judgment 
of the Delhi High Court 
when it came out 
four years ago. 

It was a model of learning, 
humanity and application 
of Indian Constitutional principles.
It was well crafted, 
and its reasoning 
clearly set out. 

It decided that Section 377 
of the Indian Penal Code 
infringed Article 14 
of the very Constitution, 
which deals with 
the fundamental right 
to equality of it's citizens. 
It infringed Article 15, 
which deals with 
the fundamental right 
to non-discrimination. 
And it infringed Article 21, 
which covers 
the fundamental right 
to life and liberty, 
including privacy and dignity. 
The judgment 
of the High Court 
'read down' Section 377 
in order to decriminalize 
private, adult, and 
consensual sexual acts.

The government 
found no fault 
with the judgment 
and did not appeal. 
However, a number of people 
who had no real standing 
in the matter did challenge it. 

Two judges of the Supreme Court 
heard the appeal in early 2012. 
Then, 21 months later, 
and on the very morning 
of the retirement of one of them, 
the judgment was finally pronounced. 
The Delhi High Court judgment 
was set aside, 
Section 377 
was reinstated in full, 
and even private, adult, 
consensual sexual acts 
other than the one 
considered 'natural' 
were criminalized again.

As the mother 
of my elder son, 
I was extremely upset. 
But as a lawyer 
and a former judge, 
I decided to reserve 
my views till I had read 
the judgment. 
When I read it, 
it would be true 
to say that I found 
difficult to follow its logic.

A host of academics 
and lawyers have critiqued 
the judgment in great detail, 
including the non-addressal 
of the Article 15 argument, 
and have found it 
wanting in many respects. 
I do not intend to 
repeat those criticisms. 
However, I should point out 
that both learning and science 
get rather short shrift. 

Instead of welcoming 
cogent arguments 
from jurisprudence 
outside India, 
which is accepted practice 
in cases of fundamental rights, 
the judgment specifically 
dismisses them as being 
irrelevant. Really?

Further, rather than following 
medical, biological and 
psychological evidence, 
which show that homosexuality 
is a completely natural condition, 
part of a range not only 
of human sexuality 
but of the sexuality 
of almost every animal species, 
the judgment continues 
to talk in terms of 'unnatural' acts, 
even as it says 
that it would be difficult 
to list them!

But what has pained me 
and is more harmful 
is the spirit of the judgment. 
The interpretation of law 
is untempered by any sympathy 
for the suffering of others.

The voluminous accounts 
of rape, torture, extortion 
and harassment 
suffered by gay 
and transgender people 
as a result of this law 
do not appear 
to have moved the court. 
Nor does the court appear 
concerned about the parents 
of such people, 
who stated before the court 
that the law induced 
in their children 
deep fear, profound self-doubt 
and the inability 
to peacefully enjoy family life. 
I know this to be true 
from personal experience. 
The judgment fails 
to appreciate 
the stigma 
that is attached 
to persons 
and families 
because of this 
And reason
for being a criminal,
is that my son loves?

- Based on Leila Seth's article, A mother and a judge speaks out. She died a week ago and has left behind a legacy of solid allyship and motherly care for Indian Judicial System and society to reconsider it's moral standing.

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