Individual opinions can never be called judgment. Nor can the obiter dicta – verbal observations of a judge – be a part of any ruling of the court. These two aspects need to be understood in proper perspective as the word ‘judgment’ is losing its very essence in our country. Very often the media play up the casual observations of the judges made during the hearing though they have no legal binding as such. Common people wrongly take it is as a part of ruling or judgment.
Not only that: individual judges of higher judiciary are changing the rulebooks at the drop of a hat on the plea that they are the custodian of the Constitution.
A football or hockey referee supervising a match has no right to change the goal post or widen the net simply because the contest has remained goal-less. Similarly a judge – or two – has no right to change the very meaning of the Constitution, the IPC, etc. simply because s/he is the custodian of the Constitution. The rules of the game are changed by a panel of referees or umpires, former players and other experts and not just by one man supervising the match in the field. Everything is taken into account before implementing a new changed rule.
Similarly just one or two judges cannot decide the fate of the entire country. At most they can decide the fate of one or a group of individuals. Just like the referee supervising a match, s/he can convict or acquit anyone – or more than one person – whose name figures in any particular case.
A Bench can make certain observations and give opinions on any issue but just cannot decriminalise a crime or scrap the very law of the land in one go because s/he is the custodian of the Indian Constitution. If this is the case then what is the need of Parliament, the highest law-making body of the country, which can even overrule the Constitution Bench of the Supreme Court.
If a rule of the game can be changed by so much debate and discussion within the panel, and not by just one referee or umpire, how can the law of the land be changed by just one or two judges of any high court, or even the Constitution Bench of the Supreme Court.
The basic argument given by the two-member Bench of Delhi High Court in its July 2 last ruling declaring homosexuality between consenting adults as legal is that Section 377 is 149 years old and is based on Victorian morality; thus too old to be implemented. Besides, it said that Section 377 violates the human right of a section of citizens. But who will decide the consenting adults.
Laws are never abandoned or amended because they have become old. Rather they are judged on the basis of their merit: whether they are good or bad, rational or irrational, harmful for society or not, etc. If oldness is made the criteria then all the laws will have to be changed after every few years.
What is strange is that the Delhi High Court found fault with 149 years old law only to advocate thousands of years old practice of homosexuality. Homosexuality was rampant during the time of Prophet Lut (Lot in Bible), ancient Greek and Roman civilizations, etc. In fact it is this evil practice which, among other things, contributed to the decline of these civilizations. In ancient Greece teachers would have gay relationship with their disciples. And to justify this crime they would argue that it is through their semen that the talent could be transferred. Even the modern western civilization is now fed up with the law of their own-making. Gays often wreak havoc on the streets of many western cities late at night.
It is no denying the fact that sexual perversion has led to the downfall of almost all the great civilizations. When a civilization becomes perverted, soft, corrupt, pleasure-loving, luxurious-minded, etc., its days are numbered. Historians have dealt with these facts in great detail and those having close watch on the western civilization are writing on the issue.
True sexual perversion can be found in any civilization – great or not great. The problem arises when that society or for that matter civilization starts glorifying and decriminalising it and see wisdom in it. For example, today it is being argued that Section 377 violates the human rights. But the champions of human rights have no sympathy for the young passive partner whose rectum sometimes gets ruptured while engaged in anal sex. In fact one of the objectives of Section 377 was to check this abuse of young boys. In the naming of consenting adults they would be sexploited.
As a Times of India reporter some years back I have personally reported such cases. Though many rape cases are hushed up yet the truth is that the incidents of sodomy are even less reported as the victim boy simply refuses to divulge it. While the cases of girl victim get highlighted because of the fear of pregnancy, the underage boy victim too undergoes a great trauma.
In one such case, which I had reported, a very young rickshaw-puller got his rectum ruptured when a policeman, posted in a desolate police station, tried to force himself into him. The case failed to get highlighted in the media. After the Delhi High Court judgment criminals like that policeman would go scot-free.
Just as a panel of experts, ex-players, referees and umpires is consulted to change the rule of the game, the law of the land can be amended by open discussion and debate in Parliament and even outside. The opinion of doctors, social activists, religious-leaders, etc. must be taken to make any final judgment on any important social issues. For example, experts and doctors are of the view that the highest percentage of cases of AIDS in India – 7.4 per cent – are found among homosexuals, but the Jacks-of-all-and-masters-of-none sitting in the media are giving a new non-serious twist to the whole serious debate. The tragedy is that the real trials these days are so much influenced by the media-trial that all the important issues have lost their very relevance.