Showing posts with label Supreme Court. Show all posts
Showing posts with label Supreme Court. Show all posts

Monday, 20 April 2015

Status of implementation of the Supreme Court judgement dated 31.10.2013 in WP(Civil) No. 82/2011



Status of implementation of the Supreme Court judgement dated 31.10.2013 in WP(Civil) No. 82/2011





G.I., Dept. of Pers. & Trg., O.M.No.18016/3/2011-Estt.(L), dated 17.4.2015





Subject: Status of implementation of the Supreme Court judgement dated 31.10.2013 in WP(Civil) No. 82/2011 in the matter of Shri T.S. R.Subramanian & Others vs. U01 & Others – Parliament Assurance in Rajya Sabha Unstarred Q. No. 988, answered on 17.07.2014, on ‘Amendment in Rule 3(3) of All India Service (Conduct) Rules’ – regarding






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Wednesday, 11 December 2013

Colonialism and Homophobia

Today we discovered that the Supreme Court of India recriminalised gay sex ("sodomy") - a ruling which will have a potentially devastating effect on gay men in this country of 1.3 billion people. 

The Indian statute that prohibits "carnal intercourse against the order of nature with any man, woman or animal" dates back to two years after the establishment of the Raj, namely 1860.  It is widely interpreted as referring to gay male sex.  My understanding is that lesbian sex continues to be ignored, as under Victorian British law - women are incapable of having "carnal intercourse" together.  The law has been criticised by Human Rights Watch to harass HIV activists, gay men and other LGBT groups.  It is in their view a "continuing threat to public health" as well as a violation of protections in India’s constitution for the rights to equality and to personal liberty.


The Indian Supreme Court

Before British colonisation there were differing, often far more ambivalent views towards homosexuality in India.  The obvious example of the Karma Sutra shows a very inclusive relationship towards all aspects of human sexuality.  This is a common theme in many countries around the world that became part of the Empire, specifically including Africa.  The outlawing of consensual same-sex male acts was an export of the British, along with their desire to Christianise indigenous populations.

I don't think the preceding paragraph is too controversial.  The question is then to what extent, if any, state sponsored homophobia today can be seen as a lasting legacy of British rule.  The Kaleidoscope Human Rights Foundation carried out a report in 2011 that identified some striking facts:
  • There is "state sponsored" homophobia in 40% of nations worldwide
  • Gay sex is illegal in 42 of the 53 Commonwealth nations (with India now included)
  • Non-Commonwealth states where gay sex is illegal make up just 24.5% of the total
  • So, as Kaleidoscope puts it "the Commonwealth has a big problem"
France legalised gay sex in 1791.  The Netherlands did so in 1811.  The experience of countries which were part of the French or Dutch empires is markedly different to those under British rule.  That is not to say that homophobia does not exist in those places - of course it does to some extent - or that it the British empire was the sole cause of it: consider, for example, Saudi Arabia.  But it is a fair, broad-brush generalisation to conclude that where the British were the imperial power, they brought with them legalised state sanctioned homophobia and this has clearly, by the numbers above, left a lasting legacy.

The brilliant historian and writer, Alex von Tunzelmann, put it extremely succinctly for me this morning - this is in her opinion an example of "internalised colonialism":


Earlier today Sunny Hundal picked up on a tweet of mine that quoted from the Guardian report of the Kaleidoscope report and commented that:



Note the "partly".  No one is saying that today's decision in 2013 is the exclusive fault of Britain today.  The judges were the ones who made their decision today - nobody else - and successive parliamentarians in India since 1947 who decided not to decriminalise gay sex are the ones who are responsible for the law still being on the books.  Sunny was, however, quite rightly pointing out that the British left behind a cultural legacy that continues.  The legacy of homophobia that was exported under the long period of Empire still shape attitudes and affects people.  I really don't see what is so contentious about that.

Louise Mensch apparently disagrees - along with various other right wingers who then joined in the fun.  I'm puzzled why this should evoke such a reaction - presumably it's somehow unpatriotic or offensive to suggest that Britain did some bad things and the effects of these linger on. 
Louise incidentally clearly missed the "partly" when she read Sunny's tweet. 



In response, I asked Louise whether she believed colonialism had left behind any positive enduring legacy anywhere.  Clearly it has: right wingers are normally ever so keen to point out the railways, education, infrastructure, church building and all that jolly stuff that Empire brought with it.   Yet Louise didn't answer.  I wonder why.  Perhaps it was because she knew she'd fall right into the trap of admitting that if it's possible and valid to praise previous governments for the legacy they've left behind, then one can also "blame" them.  It's two sides of the same coin.  Either Empire left some kind of mark that endures to a greater or lesser extent today, or it didn't.

It's fairly clear to me that decades, and sometimes hundreds of years, of Empire leaves a cultural legacy on a nation and on a people.  Some of this will be positive, some of it will be negative.  In the time since independence nations will make their own decisions and go their own way.  But to dismiss out of hand the finding that homosexuality is illegal in 42 of 53 Commonwealth states, and to fail to see any causation when it was Britain that introduced these laws is just a bit baffling to me.  

So to conclude, yes, Britain has moved on and I'm tremendously proud it has done so.  What it should be doing now is to speak positively to seek to influence its fellow member states in the Commonwealth to realise that what was considered acceptable in 1860 is not in 2013.  We - in part - created this mess.  I'd like to see us attempt to help clear it up, if that is at all possible.






 







 


Wednesday, 27 November 2013

Homophobia and the B&B case

It's been another excellent day for LGBT rights in the United Kingdom.

The "Christian" (I'll explain the inverted commas in a moment) guest house owners who refused to allow a gay couple to stay, in clear contravention of the law, have lost their case in the Supreme Court.  They were funded by the homophobic Christian Institute in their lengthy struggle to have the right to discriminate against the gay couple, in case you wondering.  They lost in the County Court, they lost (unanimously) in the Court of Appeal, and now they've lost (unanimously) in the Supreme Court. You'd hope they've got the quite clear message by now.

One of the most heartening aspects of this case were the words of Baroness Hale, the Deputy President of the Supreme Court, and as such the most senior woman judge in the country.   She went way beyond simply rejecting the guest-house owners' spurious arguments, with this passage right at the end of her judgment:
"Sexual orientation is a core component of a person's identity which requires fulfilment through relationships with others of the same orientation... [Homosexuals] were long denied the possibility of fulfilling themselves through relationships with others.  This was an affront to their dignity as human beings which our law has now (some would say belatedly) recognised.  Homosexuals can enjoy the same freedom and the same relationships as any others.  But we should not underestimate the continuing legacy of those centuries of discrimination, persecution even, which is still going in many parts of the world."
These are beautiful words, coming as they do, from someone so very senior in the judiciary.  When I studied law (at the same Cambridge college as Baroness Hale, no less!) I remember sitting in a supervision in 1994 reading the words of the Law Lords in the recently handed down R v Brown case.  It followed a homophobic witch-hunt by the Police, and the overtones of the judgement were extremely unpleasant.  How times change, and so very rapidly.

The wonderful Baroness Hale of Richmond

The owners of the guest-house in this case have taken every opportunity to portray themselves as reasonable, simple Christian believers.  It is actually hard not to see them as are hard-nosed zealots, determined to take their alleged right to discriminate as far as they possibly can.  They have chosen to open a business and simply can't expect to get away in 2013 with the equivalent of hanging a "No Blacks, No Irish" sign on their door.  They do not even share the part of the building that was used as a commercial guesthouse with their private living quarters, nor is their any evidence they asked straight couples for proof of marriage: quite the contrary.

They will continue to portray themselves as a persecuted minority in the ilk of the early Christian martyrs.  There is a certain group, like them, who seem to revel in their status as long-suffering Joan of Arc types.  Being thrown to the lions in ancient Rome is nothing compared to what they suffer.  They were after all simply "following God's word" in discriminating against the gay couple.  After today's judgement they said they preferred to disobey the law of the land if it meant obeying "the law of God".  They forget that it's their interpretation of the law of God, and there are certain huge flaws in their argument as I've pointed out before with a quick look at Leviticus.

For any straight readers, imagine the personal offence and damage to your basic dignity at being told that cannot stay somewhere because of your relationship.  It happened to my friend Henrietta and her girlfriend in an expensive boutique hotel one Easter, before this legislation existed, which wasn't that long ago.  The aggressive hotel owner told her he "wouldn't have any of that going on under his roof" and literally threw their bags out of the reception.

Of course there are amusing elements to this case too.  I love the assumption that sharing a double bed means you're going to have sex (or will be tempted to).  It's positively Victorian: hands above the sheets, boys and girls!  How about the times I've shared a double-bed with sundry male and female friends, with my mother, and indeed with my dog, without feeling even the slightest need to shag my bed-fellow in the middle of the night.   Moreover, who needs a double-bed if you do actually fancy your bedroom mate?  Do these people have no imagination? :-)

Christian Homophobia

I still encounter homophobia on a regular basis on Twitter.  A common theme arises: by no means all Christians are homophobes, but almost all homophobes I come across seem to be Christians.

There's the zealot Catholic stalker of mine who talks not about gay people, but of people who "have SSA" (same-sex attraction) as if it were an affliction or a temporary disorder that can be "cured".  I didn't chose my sexual orientation, honey - you however chose your faith.. and your nasty, bigoted views.  Then there are the random men, often from America and Australia, who just hurl out violent homophobic abuse to strangers.  It's a very odd straight man who spends all his time thinking about gay sex and gay men.  You don't need to be Dr Freud to take a guess at what's going on here.

Who you trying to kid?!
As ever, the hollow vessels make the most noise, however, and it's important to remember that the bulk of Christians I interact with don't share this type of view point.  In fact several I know are embarrassed, at pains to disassociate themselves from these attitudes, and are genuinely some of the kindest people I know.  It's a constant task to remind yourself of them, but it would make me guilty of the same prejudice I deplore not to.  Aside from anything, they're a delight to talk to.

I therefore deliberately put the word "Christian" in inverted commas at the start of this blog post because my understanding is that the type of people who would shut people out, discriminate, judge and behave spitefully to others based on Jesus' teachings are about as far away from "salvation" as it gets.  It's just such a shame they have such enormously big gobs and make you forget about the good guys.

Going Forward

Gay men, in particular, were often accused in the past of being unable to forge lasting relationships and commitment.  Imagine the effects on their relationships if for a chunk of their life they were at risk of being arrested for having private, consensual sex in their own home.  Imagine what it would be like to live through Mrs Thatcher's government introducing the most spiteful piece of hate-legislation parliament has probably ever passed, with words in it like "pretend family relationships".  Imagine hearing as recently as 2012 from the most senior Catholic in Britain (who as it turned out sexually assaulted young male priests), and half the Tory party in Parliament, that your relationship was in no way worthy of being put on the same footing as heterosexual marriages.  Imagine not knowing for sure until 27 November 2013 whether you could go away for a break together and risk having a guest-house shut you and your partner out for being gay.

All of that has a massive knock-on effect.  Everyone wants their loving relationships affirmed and their love for one another honoured by friends, family and society at large.  When the law allows the discrimination it has done, it places an enormous strain on things.  The fact that so many LGBT people have worked through all this and led happy, fulfilling lives with contented relationships is a real testament to them.  As the legal and societal position continues to improve, so I believe will the lives and relationships of those in the LGBT community.  This a wonderful, wonderful thing.

So it's been another great day, just like the day Parliament finally passed the Same Sex Marriage Bill.  Thank you, Baroness Hale, and your learned colleagues.  You have no appreciation of the ripple effect your splendid words and sentiments may come to have.