Homosexuality, habeas corpus, and the veneration of slaves


1. Forced veneration is good for the spirit

“The directions are issued, for love and respect for the motherland is reflected when one shows respect to the National Anthem as well as to the National Flag. That apart, it would instill the feeling within one, a sense committed patriotism and nationalism.”

At first glance, it is conceivable that this might not come across as the outpourings of someone particularly well-acquainted with the English language, or even of someone who is long past his fourteenth birthday. The text continues, “Be it stated, a time has come, the citizens of the country must realize that they live in a nation and are duty bound to show respect to National Anthem which is the symbol of the Constitutional Patriotism and inherent national quality. It does not allow any different notion or the perception of individual rights, that have individually thought of have no space.”

Appearances are deceptive, for this is an official record of proceedings of the Supreme Court of India — this is an excerpt from instructions issued yesterday (November 30, 2016; http://sci.nic.in/FileServer/2016-11-30_1480502585.pdf ) that are legally binding across the nation of a billion-plus human beings.

These human beings are evidently an ungrateful bunch, for their patriotism is a little suspect. To tackle this shocking deficit, the Supreme Court commands all cinemas throughout India to play the national anthem before film screenings, to have the doors closed during the period, to simultaneously display the national flag on the screen, and for all present to move their bodies to an upright position.

Of course, many millions of Indians would not be able to explain what the national anthem states, not speaking the language it is written in. Furthermore. many would not even be able to identify the language it is written in. These claims the author makes, extrapolating from necessarily limited personal experience.

A claim that shall certainly be less controversial is this: that the Indian polity has more pressing problems than to promote anachronistic nationalism in movie theaters. For instance, hunger, indigence, infectious diseases, oppression, corruption, decaying infrastructure, terrorism, et cetera.

But the Supreme Court of India thought that forcing people to listen to the national anthem would be a much better idea.

2. Habeas corpus is superfluous

Apparently, they used to play the national anthem back in the dark days of the 21 month state of emergency, which was unilaterally declared in June, 1975.

The Court played a shining role in that episode too. On April 28, 1976, the Supreme Court of India “obediently overturned the decisions of a half‚Äźdozen lower courts scattered across India, which had ruled in defiance of the Government that the right of habeas corpus could not be suspended, even during the emergency that Mrs. Gandhi declared”, as reported by the New York Times. However, the majority decision that denied hundreds of millions of people a basic defense against the arbitrariness of the police and the government ( http://judis.nic.in/supremecourt/imgs1.aspx?filename=5622 ) had one dissenting voice, that of Justice Hans Raj Khanna, who opined that the “Law of preventive detention, of detention without trial is an anathema to all those who love personal liberty”. There shall always be some who love Liberty.

So, show deference to the national anthem, and accept tyranny. Anything else? Perhaps one more thing.

3. Homosexuality is heinous

Sherlock Holmes once says to his Watson that real life is always more astounding than the imagination of an author. The delicious irony of a fictional character making the observation aside, which peddler of fiction could imagine that the storyline of an American comic series would be directly influenced by the Supreme Court of India?

Yet, it is true. Asok, the smart Indian intern in the witty office-politics strip called Dilbert, was turned into a homosexual as a protest against a 98 page decision by the Supreme Court of India to make intra-gender sexual activity between consenting adults illegal. This was done on December 11, 2013, by setting aside the decision of a lower court in Delhi which had found Section 377 of the Indian Penal Code on so-called Unnatural Offenses as unconstitutional.

That too appears incredible, for which civilized country would consider homosexuality illegal?

Yet, it is true. Here too there is irony — this is the same nation which produced the Kamasutra and raunchy temple sculpture, and one of whose magnificent epics, the Mahabharat, has one of the mightiest warriors of antiquity slain by a person of ambiguous gender. This hundreds, or thousands of years ago.

Not just homosexuality is cast into the shadow by this section drafted back in 1860, but anything which is not ‘natural’ — i.e. any situation wherein a human being might seek sexual pleasure outside of an attempt to propagate the species. Presumably, even “regular” sexual acts using a condom are unnatural.

The Additional Solicitor General, who unsuccessfully argued the case in the lower court, suggested that “social and sexual mores in foreign countries cannot justify de-criminalization of homosexuality in India. In the western societies, the morality standards are not as high as in India”. While that might be contested, given that millions of the wretched in India are treated as less than human beings, the standards of irony and self-delusion in India are certainly the highest.

The High Court claims that “inclusiveness” is a value deeply ingrained in Indian society. “The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognizing a role in society for everyone”. Perhaps the learned judge holds the frictions caused by the Hindu caste system, the recurring riots between Hindus and Muslims, the ostracizing of widows, linguistic discrimination, and the sidelining of the handicapped as pieces of fiction, created by some itinerant bard?

[Gentle reader, if you have the time, both judgments make for interesting reading; note also the manner in which the English language has been employed, by the highest levels of the judiciary, in official, written judgments.

1. Delhi High Court judgment of July 02, 2009 (decriminalizing homosexuality)

Click to access APS02072009CW74552001.pdf

2. Supreme Court of India judgment of December 11, 2013 (recriminalizing homosexuality)

http://judis.nic.in/supremecourt/imgs1.aspx?filename=41070 ]

The last point of the Supreme Court’s judgment emphasizes that the court “has merely pronounced on the correctness of the view taken by the lower court on the constitutionality of Section 377 and found that the said section does not suffer from any constitutional infirmity”.

Surely, this is a curious use of the word “merely”? To snatch away a fundamental freedom from a billion people, to marginalize lesbians and gays, to cruelly mock those who revealed their till-then-illegal sexuality in 2009, and must now fear prosecution, for one does not all too often change sexuality — that is all, merely that.


Oh when, most ancient Indies, will you take to Liberty? That no one may presume to establish tyranny, not in the movie halls, not in the bedroom, and not anywhere else either.