I’ve
spent the first 2 days of my winter break reading for an essay titled “Why,
according to Hobbes, should subjects obey the sovereign?” A quick run-down for
those of you who haven’t got the chance to read Hobbes’s stuff- he had some rad
ideas about how essentially man was perpetually in the state of nature and how
it was the ultimate need for self-preservation that led them to kill one
another, and how in order to escape this state of nature every man had to
transfer their complete will and authority to make decisions to a sovereign who
took the decision as to what constituted a threat to society and how to deal
with it. This is literally the basis of modern politics.
 |
| Hella rad guy |
The
reading was going great till the Indian government, as it does from time to
time, decided to mess with it (not with my reading specifically, but life in
general).
Section
377 of Chapter 16 in the Indian Penal Code (dated 1861) criminalized sexual
acts that were “against the order of nature”, apparently any sex that wasn’t
penile-vaginal penetration, effectively outlawing inter alia oral and anal sex.
In 2009, the Delhi High Court had decriminalized homosexuality on the basis of
human rights in a country that has 30 million (declared) homosexuals. 4 years
later, the Supreme Court reversed this decision and outlawed “unnatural sex”.
People who practice this unnatural sex (read: homosexuals) can face up to a
maximum of life sentence. The people who raped Damini are
probably going to serve the same sentence as those practicing consensual oral
sex in their bedrooms (let’s face it- India hangs people once in a blue moon, and
there are 476 convicts on death row as of February).
Hobbes
claimed that the sovereign’s decision took precedence over all- if we want
order and self-preservation we listen to the sovereign. However, he also stated
that the sovereign couldn’t dictate every aspect of our lives. Now, if the
sovereign were to decide that homosexuality was illegal, there was nothing the
subjects could do. Technically the sovereign could make decisions about
anything that didn’t result directly in inflicting harm or death upon oneself
and the subject would have to obey. Hobbes didn’t think that the sovereign should do this, only that he could. The states that we live in today
have more power than Hobbes imagined his Leviathan could ever have, and
yesterday the Indian Supreme Court demonstrated this by effectively forcing
their way into the bedrooms of millions and placing their hand over their
genitals and saying “Private parts? We beg to differ”.
Section
377 criminalizes consensual, non-procreative sexual relations. Overnight, every
sexually active Indian having intercourse without the intention of reproducing
has been turned into a criminal. Obviously this has been ignored- nobody’s
going to target heterosexual couples having sex! If I’m being absolutely
honest, chances are this, like every other legal matter in India, is probably
not going to be enforced even remotely strictly and that life will continue in
the bedroom as normal. But the fact that the SC has declared that private parts
are no longer private parts is a symbolic setback for the entire country. It
claims that the High Court’s decision in relied extensively on other countries’
decisions regarding homosexuality but that it cannot be applied “blindly” to
India. This is in regard to a law that is dated over 150 years ago and was put
into effect when the British ruled the country. If the SC is such a big fan of
ancient manuscripts, why don’t they look at the Rigveda (one of the four sacred
texts of Hinduism)- “what seems unnatural, is also natural”. The SC claims that
this law affects everyone who practices non-procreative sexual relations with
“man, woman and animal” and yet it doesn’t take much to figure out that this
gives people the reason to target homosexuals and makes it especially difficult
for them to seek help for HIV/AIDS related issues.
For
a country that condemns China, Saudi Arabia and Russia for being oppressing its
minorities regarding ethnicity/gender/political opposition, India’s doing a
bang-up job of going back on its word to protect human rights. The good news is
that this is rallying supporters the way sexual harassment rallied supporters
in the last few years. Furthermore, as mentioned earlier, this probably wont
have much effect on what goes on anyway. However, the very act of
re-criminalizing this sets India back a couple of centuries. Hobbes said the
sovereign holds all will and authority to prevent summum malum- in the
strictest Hobbesian sense the Indian SC is clearly failing to grasp the concept
that homosexual sex has little to do with societal order and the protection
from death.
-Lassie
P.S. Apologies for not writing for 9 months, further apologies for probably not writing for another 9 months- like the Indian judiciary system, I plan on being useful only once in a blue moon. In other news, university is treating me gr8
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