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TWO JUDGEMENTS IN THE NAME OF FREEDOM & HOW DIFFERENT THE RESPONSE! MEESHA & SECTION: 377

On 5th September 2018, a bench of Supreme Court of India presided over by the Chief Justice Deepak Mishra dismissed, in the name of freedom of expression, a petition seeking a ban on the publication and circulation of a Malayalam novel MEESHA (Moustache) by S. Harish. The petition had contended that parts of the book contained derogatory references to temple going Hindu women, so also that it contained offending parts insulting Brahmin priests. Besides certain characters in the book demean womanhood and treat women as sex objects.

The court in its wisdom had held that “the creativity and imagination of an author cannot be held hostage to the vagaries of subjective perceptions, whims and fancies of individual readers.”

It went on to quote French philosopher Voltaire and others to justify the freedom of expression. According to the bench, ‘the judiciary should remain committed to keeping the flag of democratic values and ideals of freedom and liberty flying high. A writer should have free play with words, like a painter has it with colour. The passion of imagination cannot be directed. It is for the reader to read a creative work with a mature spirit, catholicity of approach, objective tolerance and sense of acceptability founded on reality.’

6th September 2018, the following day, a five-judge constitution bench of the Supreme Court decriminalized homo sexuality in the name of freedom of choice with a prayer to the LGBTQ community to forgive history for subjecting it to brutal suppression. LGBTQ refers to Lesbian, Gay, Bisexual, Transgender and Queer.

Bench headed by Chief Justice of India, Dipak Mishra, unanimously held that criminalization of private consensual sex conduct between adults of the same sex under section 377 of Indian Penal Code, was clearly unconstitutional.

Reportedly, Chief Justice, Dipak Mishra & Justice Khanwilkar had remarked “Constitutional morality must-guide us all. Veils of social morality can’t be allowed to curtail rights of others. The LGBTQ community posses equal rights as any other citizen. Any societal repression of their innate and biological sexual orientation is against the fundamental right to free expression. Homosexuality is their order of nature”.

“Medical science should stop being a party to the stigmatization of homosexual by trying to cure something that is not even a disease” Justice D.Y. Chandrachud was reported to have remarked.

“Persons who are homosexuals have a fundamental right to live with dignity, be treated in society as human beings without any stigma being attached” was the take of Justice RF Nariman, while Justice Indu Malhotra said “History owes an apology to members of this community and their families for the delay in providing redressal for the ignominy and ostracism”.

Thus, all members of the bench were clear in their mind that same gender sex is no crime at all.

It was in 2009 July that Delhi High Court bench of Justice A.P Shah & Justice Muraleedhar Rao had rejected the vision of section 377 dealing with the societal morality of same gender sex as crime. They declared that criminalization of homosexuality is unconstitutional.

But the same Supreme Court, which on 6th September 2018 called same gender sex is no crime at all, in 2012, when the judgement of the Delhi High Court decriminalizing homosexuality was challenged in the apex court, it reversed the order of Justice AP Shah and Justice Muralidhar Rao, maintaining it was for the parliament to make or unmake laws.

Indeed times are changing. The judgement of 6th September 2018, is a complete turnaround for the top judicial minds of the country as they were disposing a bunch of writs challenging the 2012 Supreme Court judgement insisting on the criminality of the grounds as espoused under section 377 of the constitution.

Reacting to the 6th September judgement, there was a plethora of reactions and responses from across the media and intelligentsia. From “Drawing a curtain on the past” to “Constitution Trumps Social Morality” to “SC restores India’s Fundamental Plurality” to “1st Round won; New Battle Begins” to “Gay abandon over ruling at SC lawns” to “Real fight lies ahead” to “Right to love upheld” to “Sexual equality affirmed” to “The lives of over 100 million Indians may have been freed by Supreme Court”. One even remarked “When Atlas shrugged at gays”

The media and public space like facebook etc were flooded with positive responses indicating the gush of water as if from an overflowing dam burst.

Of course, every issue, right or wrong, has its other side as well. Naturally, there were groups clearly upset with the latest intervention by the Supreme Court to give the ‘so-called’ aberration, a ‘carte blanche’ of acceptability.

There have been religious groups, who did not hide their sense of  disappointment. It did cause deep consternation. It was a kind of culture shock. Chandra Prakash Kaushik, President of Akhila Bharathiya Hindu Mahasabha (ABHM) has reportedly remarked “What if my son brings home a boy? Indian families can still accept inter-caste divisions, but this is unacceptable” “What is the function of human race? It is procreation. Homosexuality is against that principle” said Maulana Jalaluddin of All India Muslim Personal Law Board. “Homosexuality is not compatible with nature” remarked RSS spokesman. “Homosexuality is against nature. Whichever country has legalized it, there is a rise in suffering and diseases like AIDs. SC should have consulted heads of religions before taking decision” said Dr. Umer Ahmed Ilyasi of All India Imams Organizations. “The Catholic Church holds that homosexuality behavior is morally unacceptable because it violates the purpose of human sexuality which is procreation. Homosexuality may not be a civil crime anymore, but morally it is a crime and hence not acceptable” said Fr. Stephen Fernandes of Catholic Bishops Conference of India.

If all those men of religious organizations have disapproved of the apex court judgement on section 377, Munna Kumar Sharma of ABHM has gone a step further. He is reported to have said “We will obey the Supreme Court’s decision as of now but we do not agree with unnatural things like homosexuality. We are looking to approach the top court with a review petition. We also demand that centre should file a review plea in the apex court”.

Section 377 has a history. Like many other colonial era laws, even this provision was inserted with a view to upholding a distinctly Victorian notion of public morality. World is privy to the knowledge, that Oscar Wilde, a giant among Victorian thinkers and writers, was jailed for being a homosexual. In fact it remained in the statute books until late 1960s that homosexual act was punishable with imprisonment. It was only in 1967, the British parliament repealed this draconian provision.

Hence, there was this Sword of Damocles hanging over the head of all those Indians who lived in fear of the dreaded law due to their sexual orientation. According to one paper, many a promising career in arts, literature, politics etc was blighted when the persons indulging in what the law calls unnatural offences” or “sexual acts against the order of nature” found themselves outed and humiliated. But then, having recognized privacy as a fundamental right, prima facie, sexual conduct would automatically cease to matter to law enforcing authorities including the state. No wonder sexual preference of consenting adults are now recognized as part of individual rights and enjoy protection from state interference and intimidation on the ground that it has no right prying into the private life of citizens, gay or straight, as long as partners are consenting adults.

Sexual freedom is now the norm in most democracies. As a paper puts it, “India has been slow to leave the company of Saudi Arabia, Pakistan and other Islamic countries which treat homosexuality as an unholy act punishable even with death”.

Indeed with this judgement of the Supreme Court, these millions of Indians, will be left alone to follow their differently oriented sexual instinct, without anyone taking offence, while it is also true that there will be millions who can privately frown upon this not-so-straight- dimension of adult sex.

While Indians can be justifiably glad about the peace and happiness of the affected LGBTQ group, the license given by the apex court in the judgement on the Malayalam book MEESHA in the name of freedom of expression to writers and artist is indeed a matter of concern. Not merely for the message therein but also the tenor of language that the court took the liberty of using to convey the message.

As students we were told, right and restraint go hand in hand. You cannot have right without responsibility. The price of freedom is its responsible exercise and this is how a civil society functions. But Supreme Court of India do not seem to think so, at least when they so eloquently eulogized the writers' freedom of expression, by insisting that it cannot be held hostage to the perceived sense of outrage by a section of readers. In its enthusiasm to protect freedom of expression, the apex court had observed “A writer should have free play with words, like a painter has it with colours. The passion of imagination cannot be directed. It is for the reader to read a creative work with a mature spirit, catholicity of approach, objective tolerance and a sense of acceptability founded on reality”. But, the question is how does one’s right of unfettered expression gives licence to offend the people with whom he do not equate himself. Freedom to cause hurt is not freedom. There is no justification whatsoever in being offensive, insulting and inflammatory in the name of freedom of expression.

Long years ago, Maqbool Fida Husain, or M F Husain had painted the picture, a nude portrait, and named it Saraswathi, the venerated Hindu Goddess of Knowledge. Large section of Indians had reacted sharply at this outrage in the name of freedom of expression. Commenting on the issue, eminent lawyer, Nani Palkhivala had opined “Temples of Khajuraho are replete with erotic sculptures, hence any action against the painter would be narrow and short sighted”. Former Prime Minister V.P.Singh urged state not to initiate action against Husain. It was questioned then ‘who are these two gentlemen and what is their ‘locus standy’ to make such sweeping statement of exoneration? This is an issue concerning a large section of Indians’.

Goddess Saraswathi is like a mother to us and millions of Indians think the same way. We would never want to see any mother nude. What would be the reaction of Mr. Palkhivala and Mr. Singh, if Husain had named his nude portrait, as Ms. Palkhivala or Ms. Singh instead of Saraswathi?, was a question that made its round then.

One shudders to think, what could have happened, if Husain, had drawn a male portrait and named it Muhammed, in the name of freedom of expression! And the same Husain, had taken care to paint a lady fully draped in white saree with head covered and named it “MY MOTHER”. So it is alright to paint nude and call it someone else’s mother, in the name of freedom, because the Hindu silent majority would ignore such open idiocy in the name of freedom, and there are opinion makers like Palkhivala wouldn’t mind it. But the world is privy to the travails of Salman Rushdie and Taslima Nasrin, who are still under death threats. Or look at that Danish paper- JYLLANDS-POSTEN, which published a cartoon depicting Prophet Muhammad, somewhat as a terrorist, and the French magazine Charlie Hebdo reprinted it. The world is privy to the knowledge what happened in the Muslim world and how their anger exploded with violence and deaths. Some 20 have been killed in France alone.

Fortunately in India unlike the celebration for decriminalizing homosexual, there were no protests or celebratory crowd when the highest court of the land had rejected the appeal to ban the Malayalam book ‘MEESHA’. Indian judiciary has a mixed track record of banning nooks or not banning, suo moto or on application. Indians are privy to the knowledge how ‘The Satanic Verses’, or ‘Polyester Prince’ were banned in India. They were written by foreigners and affecting Muslims and Dhirubhai Ambani. But ‘MEESHA’ was written by an Indian and was insulting a section of Hindus. Both were expressions of writers. But how both were differently treated by the apex court! This is Yeh Mera India.

However, when all is said and done, both the judgements are wrong in law, legal eagles opine. According to them it is the state, which can ban a book or not ban a book and therefore the judgement cannot have legal validity. Similarly decriminalizing the offence under section 377 is a legal issue and hence belongs to the state domain. This was observed when Supreme Court reversed the order of Justice AP Shah and Justice Muralidhar Rao of Delhi High Court in 2012 decriminalizing homosexuality, while maintaining ‘it was for the parliament to make or unmake laws’.

Thus, it looks clear that, Supreme Court is creating precedents for the future interpretation of its role as the custodian of justice.