The Delhi high court on Monday held that sex without marriage amounted to rape

The court rejected pre-arrest bail to a man who repeatedly had sex with a woman but refused to marry her even after their engagement.

The woman stayed with her fiancé, Nikhil Prasar, in Mumbai for a few days, “where they had fun, and then went to Delhi and stayed in a hotel where they had sex”.

When it came to fixing a date for marriage, however, Nikhil refused, on the grounds that he had learned that she belonged to a different caste.

…

He (judge) said it appears that the man did not intend to marry the woman and that was why he did not wait for sex even till his formal engagement with her.

If he were so orthodox and conservative that he broke the marriage owing to caste differences, he should not have hurried in for sexual intercourse before marriage, the justice said.

The court held that if it was not held as rape, it would “result in unscrupulous and mischievous persons taking undue advantage of innocent girls by promising marriage with them”.

Sexual intercourse before marriage amounts to rape or it will result in victimisation or exploitation of innocent girls, justice Jain said.

Sex without marriage is rape? In what mind can a judge make such comment?

The rape laws in this country is in a bad state and needs immediate reforms not even 30% of the rape victims get any justice. Instead of trying to change the law and ensure better mechanism to ensure conviction our honorable court is going about making regressive statement such as this. It is not of the Court or of any body else’ job to play moral police in today’s liberalized society which is constantly embracing human rights. Today we have legalized sexual intercourse between same sex consenting adults, under the PWDV Act we have given recognition to live in couples and even granted protection to violence against women living in with a male partner.

By labeling sex without marriage as rape the court is actually giving a bad name to sexuality on the whole.

We understand that sex without valid consent is rape, every night millions of women are raped by their husbands when he establishes sexual intercourse without her consent. But the Court and law turn blind when it comes to addressing such sexual violence amounting to marital rape. An act of love or passion outside marriage is labeled rape.

I don’t want to go into the question as to why the woman registered a case of rape against this man, she may or may not have ulterior motives, or may be the man actually did rape her. We don’t know. But if the Hon’ble High Court thinks that they have given a judgment in favor of women by calling pre marital sex as rape I will say they have given a huge set back to the very little progress we have made in the difficult struggle of asserting our right to a healthy sexuality.

Updates 1:

On twitter this is becoming an argument. People think obtaining sex with false promise of marriage should amount to rape. I don’t know in which century do these people live. Sex is not a slice of cake that a woman gives and a man obtains, it is something two people do together. It is an act of pleasure, passion and love. A woman wants and enjoys it as much as a man does. Our patriarchal society need to get over this stupid assumption that all woman are bechaari innocent girls who only do sex because somebody conned them into it.

Bangalore Queer Pride Parade, 09. Photo: Vinayak Das

Queer people in Bangalore, Delhi, Chennai and Bhubaneswar today celebrated their ‘being’ under a rainbow colored flag. Gays, lesbians, kothis, hijras, intersexs, transsexuals and straight people walked the streets in large numbers amidst busy traffic dancing, laughing giggling, posing for the numerous photographers…and mostly, being proud of whoever they were in their ‘weirdest’ state of being.

In Bangalore the march started from National Law College and passed through Minerva Circle to reach Town Hall.

One of the brightest and most colorful processions one could witness, it had people dressed in traditional saris and jewelries to micro-minis to off shoulders and sexy tattoos. They had all painted rainbows on their bodies and faces. Some of them wore masks some didn’t.

The smile,the being, the pride. Bangalore Queer Pride Parade 09. Photo Vinayak Das

A three wheeler with a loud speaker led the march with one of the participants chanting slogans like, “Hindu Muslim Sikh Isai, Hetro Homo Bhai Bhai;” “Gay hua to kya hua, pyaar hua ikraar hua;” “One two three four, open up your closet door, five six seven eight, don’t assume your kid is straight.”

The rest of the near thousand people followed the three-wheeler chanting the slogans over and over again. Most of them carried placards and posters with witty lines like, “Gay ho – Jai ho;” “Section 377 sucks” “I am the pink sheep of my family” “Welcome to Ben-gay-luru” and more.

Somewhere behind were 3-4 drummers beating their drums producing an amazingly contagious energy and the colorful people danced to the drum beats like there was no tomorrow.

Photographers, many from the media and many more who just wanted to document the event and show their support, chased the sexy dancers to capture their best moments. And the participants were more than happy to pose for them, give them their best looks.

They danced, they sang, they raised slogans, they teased, they flaunted, they giggled, they shied away, they rejoiced and they smiled. A smile that came from within reflecting the sheer joy they felt in walking for an event that was about their being. It was a day they walked without fear looking straight at common people’s eyes giving a message loud and clear, “Look at me, I exist, how long are you going to ignore me, how long would you call me a freak, how long would you turn your face away when I try to talk, how long will you call me unnatural?”

The joy, the pride. Bangalore Queer Pride Parade 09. Photo:Vinayak Das

The joy and festivity of the march stays with you even after you have left the venue and then you are forced to think, “How is it going to help the humanity if those smiles are turned into tears? How is it going to help God’s scheme of things if these beautiful hearts are crushed, their existence denied and their right to love and marry a person of their own choice snatched.”

About the cause…

Section 377 of the Indian Penal Code is a law which tries to do exactly all that. It is a law that wants to and every day does crush millions of such colorful hearts and souls, in this country, whose only crime is that they want to love a person who had similar genitals like they do.

The religious leaders say it is unnatural for a man to love another man or a woman to love another woman because they don’t contribute to nature’s growth, in other words they do not procreate.

By that logic human beings are nothing more than a penis and a vagina whose only purpose is to produce babies.

The saddest part about this law is that it made India go back 100s of years in time.

Homosexuality, men having sex with men, men having sex with eunuchs and drags, had always been accepted in India. The Khajuraho temple, Konark Sun Temple and the Kamasutra are the living examples of that acceptance. Oral sex and anal sex are explicitly depicted in the temple sculptors and Kamasutra.

Hinduism as a religion doesn’t have any say in sexual performance unlike other holy books where a certain type of sexuality is labeled as sin.

It was in 1860 that the British rulers introduced this alien concept to us, that anal sex are unnatural and that it must meet criminal consequences, without having any regard to our thousands of years old culture and without having any regard to something called consent.

And why would they give regard to culture, tradition or even consent, the law was after all meant to control Indians, the dirty uncivilized natives, who didn’t know what is right or wrong for themselves, why would the super lords care about the native’s consent if they thought anal sex was wrong that was it.

Just think how dumb must a nation be that it is still living with this law which was designed with the very purpose of suppressing its own culture and people. When the British introduced this law they thought Indians were barbaric, un-cultured, obscene, they have such books and temples that talks about sexuality, they must be set right by imposing strict laws. Thus came a law that went against our own expression of sexuality.

British were gone but we continued with their laws. Not just that some of us are so dumb that they now think being homosexual is against Indian Culture. These queer pride parades are a way to remind the law makers of this country that they cannot keep this unjust law and continue violating the citizen’s basic right to chose their sexuality.

The ignorant in the fool’s paradise…

In the March today a friend and I approached the curious onlookers standing either side of the march and asked them if they knew what the march was about and if they supported the cause.

First we approached this 3-wheeler, the driver had just been handed a Bangalore Queer Pride pamphlet which he was going through quite attentively. We asked him if he knew what the pride was about. He had read the pamphlet by then and said he knew and that he surely supported the cause. Behind him in the passenger seat were sitting 3 ladies, one in her 50s the other 2 relatively much younger may be late 20s to mid 30s, the youngest one had a baby. All decked up head to toe in traditional white body golden border sari, gold jewelry, jasmine gajras, bindis etc.

I asked them, “Mam do you know what is this marching all about?”

The older lady said “No” with a smile.

I then turned to the younger ones and said, “Did you read the pamphlet?” They gave a quick look at the pamphlet again but didn’t react at all except a confused smile.

I said, “Mam this is gay pride parade.”

“What is gay?”

“Mam, homosexual, people loving people of same sex, boy loves boy, girl loves girl, that type? You know?”

The lady now gave an even bigger and terribly embarrassed smile, and shook her head in negation with a big “Noooooooo.”

The whole thing was so symbolic, these women in their white saris all decked up and perfect like nothing in the world can touch them, living in their own world without a clue about the other rainbow colored world.

I took a quick look at the baby and thought if only she had heard that part of the slogan more carefully, “Five six seven eight, don’t assume your kid is straight.”

How do we intervene in their perfect world?

These pride parades that are being held annually is definitely a big step in that regard. New York would be holding its 40^th annual Gay pride parade. India’s first gay pride parade was held in 1999, Delhi and Bangalore would be holding their 2^nd parade, Chennai 1^st and perhaps Bhubaneswar also its first parade. That’s how many years behind we are but we are definitely have a strong movement.

More cities should join in the queer pride celebrations every year. One common platform is required for the queer people of all over the nation, their protest activities should be concerted, united they should stand.

Media would play a big role which includes us bloggers too.

Films and television are the other great media particularly the Saas Bahu serials. Put a gay character in one them, perhaps call it “Kuyunki Saas meri lesbian thi.”

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I can go on but may be another day. This was my first gay pride parade and trust me I am not saying it for the heck of it I really feel my life is so much more colorful now.

I will continue writing about the queer issues in the coming days, so keep an eye on this space.

More photos on Vinayak Das’s Flickr Stream

But what beats me and frustrates me to death is to see the continuous fuss over such non issue from various sections particularly the secular Indian Muslims. There is an outrage against the Supreme Court judgment which according to many, is acceptable in theory but not in spirit.

Indian Muslim community’s anger is seeded in the fact that while out-rightly and very justly rejecting the petitioner’s arguments that he should be allowed to keep a beard against the school’s disciplinary norms, Justice Katju said that we cannot allow beards and burquas because, “We don?t want to have Talibans in the country.”

This uncalled for remark which could have been ignored has been interpreted by everybody as Justice Katju’s attempt to equate Beard and Burqa with Talibanism. I read up a few posts in the blogsphere expressing this anger. Shamnad Basheer, a professor of the National University of Judicial Science, Kolkata, writes on Hard News,

“Given the tenor of the judges’ comment, the possibility of bias against Salim and his community cannot be ruled out. After all, as a cardinal principle of justice known to most legal systems teaches us: Justice must not only be done, but also be seen to be done.? It is critical that the case be reviewed and reheard by another bench. In other words, any review petition filed by Salim’s counsel must be allowed and the case reheard by another bench to determine whether or not the special leave petition in question ought to be admitted.”

I cannot believe this learned man is proposing more of the Court’s valuable time be spent on this non issue. A review petition be allowed for what…so that school going kids are able to grow beard? Never mind the dress code and code of conduct? Since this person is arguing in favour of having a mechanism for censuring judges, I would like to ask him if he will agreed that Judges are only human, if they were not we wouldn’t need to keep a vigil on them, right? To err is to human, so yes, justice Katju’s remark was uncalled for off the cuff and silly. But that does not necessarily mean his decision was wrong or biased. Why are you reading in between the lines.

Mr. Mohib Ahmam writes on Indian Muslims.in

“Prima facie it appears that Justice Katju and the bench over-reached their jurisdiction and some of the comments made by the bench went way beyond the scope of the case. What is good for Sikhs is good for Muslims and other religious denominations as well. At the very minimum if Mohammad Salim’s Sikh classmates are sporting beards as part of their religious traditions then he should be allowed to do the same on that basis. A healthy debate on private institutions right to set rules and regulations is needed. At the same time the courts can’t litigate religion from the bench.”

I cannot stand such arrogant comment against the Courts. In exactly what capacity is this blogger making this statement that the Honble Supreme Court has over reached its jurisdiction. Who does he think he is, how dare he disrespect the Court so much? Criticism is one thing, its most people’s favourite pastime but people should know their limits. Now the Courts would have to learn from this guy what is their jurisdiction?  

There’s no point in comparing Sikh students with Muslim students. The decision is only related to a private minority institution’s right to make their own rules and regulations. It is such a simple thing, the word private by defination implies that is is my goddamn territory and I decided how I will regulate it so long as I am not breaking any law of the land.

Javed Ahmad wrote a very sensible article on Indian Express and I will just quote few of his paras:

…A half-hour Google search on mainstream Islamic websites is enough to show there are very divergent views on the beard being an “indispensable part of Islam.”

The next time you run into a Muslim obsessed about the burqa or the beard, ask what happened to the essential teachings of the Prophet: “To seek knowledge (in Islam all knowledge is sacred) is the religious duty of every Muslim man and woman”; “The ink of the scholar is holier than the blood of the martyr”; “To obtain knowledge travel to China if necessary”.

Had the self-appointed custodians of Islam honestly spread this simple message of the Prophet instead of peddling a bygone culture and patriarchy as Islam, Muslim women would today have been pushing the frontiers of knowledge and teenager Salim would have concentrated on sharpening his intellect instead of frittering his and the community’s time, money and emotion in search of shallow piety.
 

We need to learn to keep our religious sentiments at home and not carry them to educational institutions and workplaces. Every insitution has its own set of rules, values, diciplinary conduct etc and if we want to be a part of it we must respect have respect for such regulations. Otherwise there would be no end to such petitions and litigations for every random thing and we would only be walking backwards with such mind sets which puts personal faith and religion before civil laws and allows religion to control every aspect of their life.

“Bloggers may no longer express their uninhibited views on everything under the sun, for the Supreme Court said they may face libel and even prosecution for the blog content.

It will no longer be safe to start a blog and invite others to register their raunchy, caustic and even abusive comments on an issue while seeking protection behind the disclaimer – views expressed on the blog are that of the writers.”

In less than 24 hours from now you’d see an army of bloggers lamenting the death of their freedom of speech, some facebook group would be floated, every blogger would be asking one question, “can we do something about it? it would become a trending topic on Twitter and all the soldiers of blogsphere would do their best to save their ‘freedom of speech’ from being trampled under the feet of tyranny.

Uff spare me the drama I say.

I very much welcome this decision of Supreme Court and see this as a step ahead for Indian Blogsphere. This would help clean up a lot of shit that goes around the blogsphere, will help us become more responsible and mature writers thereby establishing credibility for bloggers’ opinion and most importantly it would kill the terrible habit of writing all kinds of indecent, uncivilized, abusive things anonymously in the comments thread. This would also compel the blog owner or community discussion board owner to keep the discussion clean and abuse free. It will enforce the dicipline of self regulation on bloggers, isn’t that a great thing to achieve.

I have not read the court order / judgment but from the TOI report it seems that Supreme Court has held the opinion that bloggers cannot be allowed to get away from charges of Libel, Slander, defamation etc on the ground that those are merely exercise of freedom of speech. The Court said, “if someone files a criminal action on the basis of the content, then you will have to face the case. You have to go before the court and explain your conduct.”   

To me this is very obvious and it is surprising that the Court had to actually spend its vluable time in answering a question which could have simply been asnwered by applying logic. What a mainstream media person cannot do via TV or print, a blogger is not allowed to do via internet. If a certain content falls within the defination of any of the crimes mentioned in IPC you cannot get away with it on the pretext of freedom of speech.  

The bloggers need to understand they are not beyond law. Blog is just another tool for expressing our thoughts and opinions. As a bloggers we are conferred upon exactly the same fundamental right to freedom of speech and expression that any other media has, and in the interest of democracy it is bound by the same reasonable restrictions which regulate any other form of media. Bloggers don’t have to go into frenzy every time there is the slightest incidence of regulation of their content. There is no need to be so insecure. Regulation of the content doesn’t by default mean that somebody is trying to take away their rights. Our Fundamental Rights are very strong and they can’t be taken away that easily. As long as you are writing responsibly and maturely there is no reason to be insecure about your freedom.

Bloggers already enjoy a lot of freedom of speech without any regulation. Most of the time if the blog is not popular the blogger would get away with any unconstitutional statement simply because no body cares to even read them. If however the content is from a blog that has good viewer ship or is so over the top, so obviously defamatory or slanderous that the police actually registers a criminal complaint against it, the blogger would have to face the proceedings. He is obviously within his rights to prove his innocence to the Court by providing sufficient evidence to support his opinions / accusations. But to assume that in my blog I can say or write anything against anybody without thinking twice about the consequences is rather immature.

Bloggers need to learn where do criticism end and direct accusation begin, they need to know that you can’t accuse some one unless you have valid proof in your hand. Same mistake was done by Mr. Kunte for which he faced legal threats from NDTV.

Insecure reactions have already started coming from the Bloggers / micro Bloggers community on Twitter. @knkarth says “this would help reduce reaction power of the blogging world n hand over it to the political parties? It’s sad.” When I said this decision will make us responsible and mature writers, @Sandipb asked me, “what exactly makes you feel that ‘responsible & mature’ writers are going to be spared after this precedent?” Some of the opinions acutually amuses me and establishes the point that you cannot just go about blabbing whatever comes to your mind without giving it a second thought, for eg @Gmishra says, “Who defines responsibility? or the border line! Does SC understands blogosphere good enough to judge us ?” This man can actually be booked under contempt of court for suggesting, Supreme Court is incapable of judging a case infront of it. He further says,  “I don’t trust my legal system and that’s why i need more freedom.”

I see no reason to have such fears unless of course blogging to you means mindless irrational, irresponsible biased rants. No body is there waiting for an excuse to jump on Bloggers throat and slit it. This nation has more important issues to handle than to curb a handful of Bloggers freedom. If however they cross the line they’ll face the same consequences as faced by a journalist or writer or film maker etc.

Recap: Certain Mr. Kunte wrote this blog post against Barkha Dutt. Note, I said against Barkha Dutt as a whole, not just on her reporting style. He called her an ‘idiot.’ Soon he followed it with a public apology and withdrawal. The language of the withdrawal post was very legal so Indian blogshpere went ahead and assumed (may be rightly) that Ms. Dutt might have threatened him with legal consequences.

A huge uproar followed, on blogs, twitter, suddenly Kunte was a famous victim of coercion from Mainstream media, blogger’s favorite enemy, invoking large amount of sympathy. Facebook groups are being floated in his support, ‘we support Kunte’ kinda virtual slogans are being raised, there are talks of comic strips being made on the incident to malign Ms. Dutt’s image even more. Somebody even said something about a candle light vigil. In no time we have another blogging martyr first being one Mr. Sabnis.

I am the sole dissenting voice in this whole chaos still holding on to my position that I am neither in favor of Kunte nor Dutt, I just think that the Bloggers are blowing it out of proportion, bloggers don’t have the right to judge the journalistic ethics of mainstream media. If at all they do they certainly don’t have the right to call a leading professional with considerable repute an ‘idiot’. That word alone would give Ms. Dutt a reason to drag Kunte to Court, which Kunte probably have realized either on his own or after a meeting with Ms. Dutt’s lawyers, which is why he apologized.

The blogsphere should understand that a little knowledge is a dangerous thing. Before going all out making a Bhagat Singh out of Kunte, they should find out from their lawyer friends if Ms. Dutt does have a case or not. If she does, that alone is a proof that Kunte isn’t so innocent after all.

I intended to write a much detailed post but I didn’t sleep last night making this post and its 2.20 am right now. So I am gonna simply copy paste the comments I left on the various solidarity blogs written in support of Mr. Kunte.

My comment on Shripriya’s post:

You guys are all so naive and harmless souls, it fills my heart with joy to see the abundance of innocence here, so innocent you are that you just don’t get the fact that Mr. Kunte called Ms. Dutt an Idiot. I am guessing according to all you people ‘idiot’ is such a sweet name to call, rather harmless freedom of expression. Oh wow, such a noble soul is Mr. Kunte only next to a saint, so what if he called a fellow woman who is a leading name in her field and has a considerable repute an idiot.

Idiocy according to Indian law is a valid condition for nullification of marriages, for denying contractual rights, but hey Barkha Dutt according to Mr. Kunte is an idiot and so the entire Indian blogsphere, is clueless for the life of their’s, just what can possibly Ms. Dutt be upset about, and lo you have the new Blogging Martyr of the country.

Mr. Kunte’s post was far from being responsible journalism. He could have made the same point in much respectable tone. He used rude language not to forget specific use of the word ‘idiot’. If it was only a constructive criticism and not an attention seeking inflammatory exercise, he could have also avoided taking names altogether. I am not saying he can’t make an opinion, sure he can, but he was so not justified in name calling.

I am sorry to say this but suddenly the bloggers of the nation have started thinking too highly of themselves when they are just as much guilty of cheap publicity as our MSMedia. You can’t expect responsible behaviour from others if you can’t show the same yourself. Take for example people like one Harshad Joshi on this comment thread, who is going about calling Ms.Dutt a Maggot an ugly face and the rest of the blog readers are simply reading the objectionable comments and moving on. The blog owner also doesn’t bother to remove such commentators who use foul language.

I understand I am the only dissenting voice here and following this comment name calling would start against me. Just in case people forgot freedom of expression does NOT include name calling. But in my defense, am neither against Kunte nor NDTV. I just think we are making too much noise about it. Because us bloggers are no spotless minds. We are part of the circus just our means are different.

While the above debate was on, Rohit of the National Interest blog chose to attack me of all the people because of the above comment. There were 23 odd comments on that thread on Shripriya’s blog but he found mine the most objectionable. You can find his post here.

I started writing a response to him on his blog itself but it became too long so I am posting it here, he’ll get a pingback.

Ok lesson learnt from this episode: there is a thing called sarcasm, people don’t get it. So you should label your post with a *sarcasm alert*

Now since you, Nitin and rest of the team belong to the elitist camp of bloggers and I am a mere mortal my criticism is obviously unworthy, never mind my freedom of speech. Elitism at its best.

Now, this post of your is such a great example of how you can adhere to any irrelevant non contextual means to simply malign a person’s credibility to even hold an opinion. And look at the heights of snobbishness, only Mr. Nitin Pai is worthy of criticizing someone. What an incredible mutual admiration society you all have formed.

1st) you quote me from a comment which is made on Kunte v. Dutt issue. In order to dismiss the credibility of that comment you take support of things I have written in a completely different context and in completely different tone. Isn’t it one of the most basic rules that you stick to the topic and don’t dig out non-contextual facts to malign your opponent at a personal level? What an immature way of engaging in a debate. Can’t believe it is coming from you.

2nd) If at all you have to dig off topic statements from me, why don’t you go back to everything I have ever written and then decide how polite or impolite I am in my disagreement. Do you think you know my writings enough to compare me with Mr. Pai and pass such a strong judgment?

Let me tell you, it is this particular nature of harsh, disrespectful loud expression of disagreement that I am against and I find both you and Mr. Kunte guilty of that. Like I already said Kunte could have very well made his opinions, could have given a constructive criticism on how mainstream media is behaving without having called Ms. Dutt an idiot.

Another sarcasm you missed, I never dismissed entire blogsphere as clueless. If you’d read all 23 comments on Shripriya’s blog you’d see how they all said the same thing, to quote comment no. 7 by Sameer, “For the life of me I cannot see.” They cannot see why Barkha has a case, how naive and clueless are they. Of course they can see, they just won’t admit.

I am not someone who is fond of being disrespectful to anybody whether big or small bloggers or mainstream journalists. Not even to anonymous commentators. Only exception probably is Modi or Thackray and even they are always addressed with courtesy. I don’t call names. I simply don’t think myself of so highly that I can pass judgment on others.

Note the most basic difference between my post and Mr.Kunte’s post against Dutt or your present post against me, I didn’t take specific names or attack any body personally. If am saying “Die dear nation” it is pretty obvious that I am being sarcastic isn’t it? If in spite of being a lawyer I am talking about a “shoot at sight orders” isn’t it again obvious that I am being angry and cynical about the hopelessness of the situation. Is it really so hard to figure that I don’t actually mean the whole nation should die?

Add to that, I already admitted in the comments section of that post on Mutiny (Die dear nation) that it was made in a state of anger and was not logical.

But you conveniently avoided all that bit of info. You chose to focus only that bit which would make me look bad.

Your bias against me and pretension of not being able to see the truth never seem to end. You chose to pick my comment from that comment thread and made a big blog post out of it most of which was a digression from the main debate anyway. And you turned a blind eye to such comments as made by one Dr. Zen:

Sanjukta, here’s a haiku for you

An empty mind
Illusion or peace
Jobless?..

I think you should stop targeting others Each time you comment on someone’s blog, you just show up that you have a crooked mind. It shows that you are just desperate to settle your personal scores with people. Please dont wash your dirty linen in public. You seem to have your own worthless blog running somewhere…

If you dont cease your failing attempts at targeting people, we will take strict action against you by marking your blog(s) as spam. And no court will save you from it. Thats a promise.

I can’t even explain how funny this comment is. The immaturity and unprofessionalism in the Blogging community is aptly proven by the above comment. Proves my point. Kunte was no different in his criticism. I have said enough.

The only question I want to ask all of these freedom fighters fighting for their right to freedom of speech (as if they don’t have enough of it already) is that why was the Indian Blogsphere so silent on Saturday when the Mangalore incident happened or when the Nasik incident happened. What are they trying to achieve anyway?

Let’s talk about Indian lawyers for instance. They are a very unique lot. The word ‘Indian Lawyer’ is very dynamic. One hears the word lawyer and instantly makes an image but there are just as many kinds of images for lawyers in India as many class caste language dialects communities and culture we have in this nation. I don’t think you have as many types of Doctors. A doctor is a doctor and a techie is a techie, his demography and empirical background data doesn’t play so much of a role in his profession. But a lawyer is not so much about his profession he is a person first made up of the life resources he have had.

Until the very recent past Law education in India is extremely uneven. At one hand you had schools like NLSUI at Bangalore where the fees are high and getting admission is tough. On the other hand you had State Universities which are just cakewalks. There was a time in Bengal when the unemployed youth used to get themselves an LLB degree out of sheer boredom. The elderly would advice worried parents, if not anything get your son into the law college, at least that would prevent him form going astray.” Though it always didn’t. Getting a degree of course didn’t mean they are ‘lawyers’ as you’d imagine one to be. I happen to have an uncle who has a LLB degree, works in the state Government and practices Homeopathy in the evening. He is everything but a lawyer.

It all boils down to one point, India has many great lawyers, but it doesn’t have enough good lawyers in proportion to the number of LLB Degree holders and its high time we focus on producing quality lawyers. The Legal education system needs to be stricter, like the JEEs for Engineering and Medical we should have JEE for Law. The course should have focus and it should be a 5 year integrated one.

Courts and legal education both should make more and more use of information technology. In one of the speeches in 2002 Shri K Jana Krishnamurthi, then Minister for Law and Justice pointed out that the Courts in India doesn’t even have a system to gather the basic empirical data related to the cases. To quote him, “At present there is no data readily available which gives the Chief Justices a complete picture of the type of cases pending before the Subordinate Courts. Details like the number of cases filed daily, the section of the Act under which the cause of action is invoked, the advocates appearing for the parties, whether the case is a criminal or a civil case etc., are not available readily.”

Good lawyers would make good judges. It’s time we realise that judges are not Gods and they need training in Court management. They need to take up technology, be open to new means of communications like video conferencing, electronic filing of cases, should implement means to reduce paper work etc. Even if there are online versions available we see our lawyers and judges opening up big fat editions of All India Reporters and courts. AIR Manuals happens to be a piece of art item in a Lawyer’s chamber. A form of legacy. Time to lose all that jazz.

So, I set out writing about how non techie our Courts are? But here’s something interesting. For the first time in our Judiciary in a recent case it was decided that a father would have right to access his minor daughter via webcam and chat, the daughter’s interim custody having been entrusted to the mother. Progress.

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This is first part of a series I am running on Mutiny.In discussing how archaic and redundant is the Indian Judiciary.

I admire Zolan’s guts to come out with his sexuality and to be the first Indian to participate any such contest given that he might well be booked under the criminal law of the country. Many at the contest thought Zoltan stood a good chance merely because of his courage alone.

I wanted to know more about Zoltan so googled for him. Used various combinations, but couldn’t find any significant information except a few repetitive lines. Found this blog post where the author has spoken about Poornima Advani’s homophobia and found a few news article.

Being a new media evangelist, I expected this invisible section of our society to express themselves freely through blogs. But I couldn’t found many quality blogs to be honest. One reason could be that they are yet to explore blogs as a medium. The other of course is the social stigma behind being homosexual.

Indian homosexuals are an invisible bunch of people. Coming out with homo-sexuality is threatened with criminal prosecution and social ostracism.

Section 377 of the IPC criminalize homosexuality. Not in that term but in effect. It reads,

‘Whoever has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life’.

The words “against the order of nature” can be interpreted in a number of ways but is mostly interpreted as anal sex. It also penalizes sexual acts like oral sex, regardless of whether it is heterosexual or homosexual; even penile-masturbation of one person by another – is considered criminal (basically they wanted to penalize everything that is not the missionary / Victorian penile vaginal penetration meant for procreation)

A non legal person often wonders, ‘how would the law (police, court) ever find out what two people are doing behind the closed doors?’ The thing about criminal law is that, a prosecution can be initiated on a third party complaint. Which means even if the person reporting the crime has got nothing to do with the victim or the oppressor the police is bound to take an action. And the third party complaint might well be by the police itself.

In some of the horrendous incidents of police brutalities, queers from the lower class and caste have been humiliated and tortured by conducting anal inspection on them to determine if the said crime have been committed. For the police, one of the easiest way to extort money from a gay couple hanging around the Ulsoor Lake area would be – a threat of arrest under this section. Funnily, enough there have been reports of gay sex workers being raped by hetero-sexual police “men.”

It was only recently that queer activists in India raised a protest against this 150 year old law introduced by the British Raj. In December 2002 Naz Foundation filed a Public Interest Litigation (PIL) to challenge the section in the Delhi High Court on the grounds that, by prohibiting private, consensual sex, the section violates the right to privacy.

It has been a long standing trend, not only just in India but all across the Globe, to wrap rights related to sexuality under some health issue before they can be sought and lobbied for.

For the first time, through this petition, the slogan of right to chose one’s own sexuality have been raised. The text of the petition and other legal developments can be found in Lawyer’s Collective’s website here. The petition got significant support from various Delhi based NGOs who eventually formed into a coalition called Voices Against 377

The social ostracism queers have to face is even worse than police torture. There prevails a blanket homo-phobia in the society, more particularly amongst patriarchal hetero sexual man whose man hood is his honour (which basically is in his D*&$). This ‘man’ refuses to recognize a gay as ‘man’. A gay is called by names, looked down upon, made fun of, looked at with suspicion. For an heterosexual man the idea that a man can be physically attracted to another man is scary and disgusting. I often hear they say, “what if he feels me up”

And I am talking about urban, English speaking men here. The other day I was talking to a friend whose socio political understanding, outlook and inclination earns a huge amount of respect from me but it made me sad to know he is a homophobic. And I just cannot come to terms with that. This homophobia leads to social ostracism. Like he said, he wouldn’t not be friends with a gay, says he won’t even like to be seen hanging around with a gay.

I don’t know what the RSS thinks about this law, but to me this law is more against the Indian culture than protecting it. Homosexuality have always been a part of Indian culture. One can find mention of the transgender Shikhandi in the Mahabharata. Yet it is so difficult being a homosexual in India. If anybody has any knowledge on what stand does RSS / BJP has on Section 377 please share with me. I am curious to know.

This post is getting long yet there are a lot that can be written on this topic. As of now I’ll close it by aggregating some of the interesting blogs written by homosexual authors. I know, none of the popular blog aggregators subscribe to these blogs, I also know 95% readers of this present blog don’t read any such blog but may be today you should take a look at the other world.

I. While searching I first stumbled upon Jalaj’s blog ‘A Gay Delhi Guy At The Crossroads’. To quote the author from one of his posts,

“I decided that when I would start writing a blog , I would state it on the masthead that this is a blog written by a GAY individual. Period. Anyone who sees the website sees ‘Gay Delhi guy…’ There is no place for beating about the bush here”

http://vaivaswat.rediffblogs.com/

II. Queer India by Nitin Karani. There is an incredible quote line in the description of the blog which caught my attention.

“Oppression can only survive through silence.” -Carmen de Monteflores

This blog is about looking at queer issues and culture through my eyes…It will also be of interest to people interested in sexuality, gender, pop culture and queer activism.

http://queerindia.blogspot.com/

III. Confessions. Confusion. Connotations. Conundrums. And Close Talk.

Didn’t read this blog in details but it has got an interesting look to it. Found the link from Jalaj’s blog and I’ll quote Jalaj here, “

One great thing about our lovable Bong-Boy is his honesty. Most guys you meet love assuming a holier-than-thou posture on matters sexual and simultaneously lust after every piece of new flesh their eyes can humanly feast on. Bong boy lives life kingsize (size does matter…) and wears it on his sleeve.

http://talkingclosets.blogspot.com/

IV. In small pieces by Monica Mody. A friend who is a lawyer, a poet and a queer activist. She is not blogging these days for some reasons but do check out the archives.

http://insmallpieces.blogspot.com/

V. Lesley E (writes by the name Bombay Boy), a queer activist and an editor in a leading English magazine, I have met her couple of times while attending the voices meetings. I personally admire her personality and attitude.

http://mumbaikarindelhi.blogspot.com/

—

Addendum

VI. Kris Bass from Mumbai, India writes this blog called “Engayging Life… of a queer, amateur songwriter and a bassist”

And this is what he has written in his about me.

As I foray into the depths of adulthood striving to be independent, my life evolves… along with myself. A story of my life as a lover-boy, surgeon, bass player, band-member, friend and an ultimately private lousy arse!

http://engayginglife.blogspot.com/

From the above link I found links to a whole lot of other gay blogs but I am not linking them here right now coz I didn’t read them. But I’ll keep adding to this list.

Meanwhile, Monica moved from her blog to another one where she mainly publishes her poetry, (she is an awesome poet btw) and she and Lesely together write a colla-blog called, “Kaun Jaaye Zauq“. They insist you read the blog to figure out what’s the name is about. Besides these two I can’t find many Lesbian Bloggers in India.

Imagine how feeble our secularism is. So this guy liked TZP, he obviously would, it’s a classic, what’s the big deal? The deal is, that because Aamir has a certain political stand (and is also a Muslim?) it is automatically assumed that everything about him would be hated by this whole bunch of politicians. So it came as a total surprise when one of their leaders applauded Aamir’s work.

Goes to show how art and everything else take a back seat when there is a political difference, particularly if the difference is with a party which takes to violence at the drop of a hat. Everything is political here. Even the way you have sex, the way you display affection. They don’t like it if you buy a greeting card for the person you love, so they barge into your house and beat the shit out of you. They barge into educational institutions and beat up the teachers, they once fondly called Guru and chanted “Guru Bramha Guru Vishnu”. Public display of love is not acceptable but a display of hate and violence is honourable. (Ok that is a topic for a seperate post) 

As if increasing political interference in matters like art, culture, lifestyle, fashion wasn’t enough now they have started fucking the law and order of the country, that too the criminal procedure. It was atrocious to hear Shiv Sena guy say, “Our belief is that no one would dare to commit such a misdeed infront of their near and dear one and hence we feel the arrested boys might be innocent.” WTF.

Not only do they question the criminal procedure that is being implemented in the Mumbai molestation case by State police, thereby further raping the image of Indian Police, they go one step further and make an unconstitutional comment like, “It must be an outsider, a non maratha” Outsider? How did we become an outsider in our own country? Adolf Hitler is resurrected is it?

Not stopping at the public comment, Raj Thakrey takes a delegation of youth to Deputy Chief Minister RR Patils door trying to achieve…I don’t know what… May be to request Mr. Patil (a legislator) to use his position to influence the investigations procedure adapted by the State police (an executive)? Everything about this incident is wrong. They are messing up with one of the fundamental features of our Constitution, the independence of 3 branches of Governance, namely, Legislator, Executive and Judiciary.

Look at the audacity here, Shiv Sena is suggesting the police is supposed to consider the region and culture meter (if any such thing exist) of the accused and relationships amongst the co-accused before making an arrest. Of course before sucking up to such an idea they should shove the Criminal Procedure Code up Shiv Sena’s ass. I don’t understand why the hell, the police chief of Mumbai not reacting to such propositions which are not just stupid but also criminal in nature.

Section 153A of Indian Penal Code says,

Whoever,

(a) By words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place or birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or

(b) Commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities…

Shall be punished with imprisonment which may extend to three years, or with fine, or with both.

Read the full section and you’ll see this party might be booked under every clause of this section given their past records of constantly creating Maratha – Non Maratha divide, their violence against Bangladeshis, Biharis etc.

In fact this is the time when one would expect the Honorable High Court to take suo moto cognizance of the situation and issue a writ of mandamus to the concerned Mumbai police personnel directing him/her to make arrest of the Shiv Sena speaker for violating Section 153A. And may be another Writ directed to the Election Commission of India to cancel the political status of Shiv Sena for being a racist party. Talks of Maratha – Non Maratha, outsider – insider, our sons are so pure, they can never commit a crime, it’s the outsiders who are the cause of all trouble, what else are these but Racism?

[No more suggestions for HC otherwise they’d send one my door too, booked for Contempt of court]

Dad called to say, “I can’t write as good as you do, otherwise would have done it myself, please write to the prime minister to give a Bharat Ratna to our milk man, real nice guy he is, it seems they have them in plenty and its going out on first cum first serve.”

Good thing about him though, is that he only looks at me as this strange creature from outer world but considers me harmless. He is somehow convinced I pose no threat to his culture. He sees me as an alien in his little world. Unlike most custodians of the great Indian tradition, he doesn’t feel the need to defend his tradition from being polluted by me. (He has no idea)

He is curious, about how I perceive life and other important factors that drives us. So, today he asked me an interesting question. He asked, “What is your religion?”

We were having coffee, I was off guard. I casually answered, “I am a Hindu.”

He knew what my answer was going to be, because his next statement, like a canon was ready to be shot. “How can you claim you are a Hindu if you call yourself an atheist.”

“I don’t claim,” I replied.

As an atheist I do not have a religion. Not at least those religion which we find in common parlance. I could however say feminism / humanism / communism / socialism is my religion.

Technically, since I was born to Hindu parents I am a Hindu. A Hindu is a Hindu by birth, there is no concept of ‘conversion’ in Hinduism for the simple reason that it was never an organized religion that believed in growth and market. That said, in my pursuit of life religion has no role to play. So I do not and will not ever claim I am a Hindu.

Technically, who is a Hindu?

The Hindu Marriage Act (HMA) is the only Law in the country which to a very narrow extent, only for the purpose of marriage defines a Hindu. Per Section 2 of the Act, anybody who is born to Hindu parents, raised in Hindu customs is considered a Hindu and includes a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj. The Act, even though is called ‘Hindu’ marriage act, applies to Buddhist, Jaina or Sikh and to any other person domiciled in this country (some exceptions) who is not a Muslim, Christian, Parsi or Jew.

This classification of being Hindu is only for the purpose of marriage, divorce property etc. Only in these personal matters do we have religion playing a role. Marriages solemnized under HMA have also to be divorced (when required) as per the procedure laid down in the same Act.

As an atheist this is where I could be proactive. If I ever think of getting married, I would marry under the Special Marriage Act, 1954 (SMA) there by ending the religion that I have been carrying due to reasons of my birth.

The SMA is a special law which is free of all religion. The act doesn’t talk about any religion. It is applicable to any two people within the area to which its jurisdiction extends (which means India, except Jammu and Kashmir). Two people even if they are of the same religion may chose to get married under this law.

Under this law, marriages can be solemnized in any which way you might want, in any damn place you wish to (at a reasonable distance from the marriage officer’s office). The wedding could be performed by just a kiss or by exchanging garlands or by opening a bottle of wine or by simultaneously poking each other on Facebook, whatever. There is just one condition, both parties would have to say these words in front of the marriage officer, “I take thee as my lawful wife / husband.” There are some other technical requirement like 4 witnesses, notice etc.

Once a couple is married under the SMA their other personal matters are also governed by SMA and not by their personal laws. For example, marriages completed under this act can be divorced (when & if required) as per the procedures laid in this act. Which means a Muslim couple marrying under this law would no longer be governed by the Muslim personal law for divorce or property matters.

Although this is not given in black and white but it would be fair to assume that children born to a couple married under this law wouldn’t have any religion by birth. They would have the religion in which they would be brought up. If they are brought up by atheist parents, atheism would be their religion.

When I first learned about it, I liked this law a lot. On the face of it, it looked like a progressive one. Then I read Section 19 of the Act.

Secition 19 – “Marriage solemnized under this Act of any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jaina religion shall be deemed to effect his severance from such family.”

I wonder why this provision is there. What significance has it got except to strongly reflect upon the idea that even though the law of the land allows you to, yet it is not moral for you to marry against the diktats of your religious law. None of the personal law allows an inter religion marriage. Thus, couple from different religions would have to be married under SMA and bam they are severed from their familes.

Why should a law have a direct effect on my connection with my family? How strange is that.

Section 21A of SMA makes it further clear that inter religions marriages are not cool. It says,

Where the marriage is solemnized under this Act of any person who professes the Hindu, Buddhist, Sikh or Jain religion with a person who professes the Hindu, Buddhish, Sikh or Jain religion. Secs. 19 and 21 shall not apply…

This means if two Hindus decided to get married under SMA to avoid all the extravaganza around weddings, they will not be severed from their Hindu Undivided Families. All is cool as long as it is not an inter-religious marriage.

So to sum up these varied concepts — go fall in love with the one outside your religion, perform a wedding under Special Marriage Act and the law would get you officially declared as an atheist disowned by the family.

Interesting isn’t it?