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The meaning of Loving June 17, 2008

Posted by nitinkarani in English, Section 377, Times of India.
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From The Times of India edit page, 17 June 2008:

17 Jun 2008, 0003 hrs IST, Vikram Doctor

One would think that Loving vs Virginia — a landmark case dating to 1967 in which the US supreme court struck down laws against interracial marriage — is about the general right to love and marry whom one wants to.

But there was a real couple involved and one of them, Mildred Loving, died on May 2 this year, her husband Richard having died back in 1975.

She was the one who was coloured. Her husband was white, and the prosecutors argued that because he was equally punishable under the law it was not racial discrimination.

Such legal trickery meant such laws persisted in America until the supreme court swept them away. It held that all laws against interracial marriage were intrinsically racist.

Today when the son of such a marriage is the front-runner for the post of president of America, such laws seem unimaginable.

The shift from Loving to Obama has been so total it’s easy to overlook that it took just 40 years. That change can come so fast is a hopeful sign.

It also affirms the role of judges in creating such change. Judicial activism can undoubtedly go too far or become an easy substitute for the rigour of legislative politics.

Yet sometimes politics prevents legislatures from upholding the essential rights of its citizens. In 1967 interracial marriage was a vote loser.

For the courts to step in then was simply to fulfil their function of taking decisions based on principle and not politics.

The courts in India today face many such issues. There is a constant stream of horrific stories of young couples of different communities brutally murdered for daring to love.

Last month, Jasbir and Sunita Singh, a young couple from Haryana from the same Jat community, but different gotras, were killed on the order of the khap, the powerful local community ‘court’, and their bodies publicly displayed.

Young Indians don’t want to live under such oppression. An older, insecure India is resisting and because it commands blocks of votes — as the more dispersed young do not — politicians pay lip service to the latter, but never oppose the former.

This is where judges must intervene to direct the state to implement existing laws that safeguard individual rights. There is one area where the courts must intervene urgently.

Homosexuals are not just prevented from marrying, but their very existence is criminalised under Section 377 of the Indian Penal Code.

Under this Victorian relic, homosexuals are harassed, subjected to blackmail and police violence, forced into ‘normal’ marriages and have no access to any remedy because their love is still illegal in India.

It is time now for India to repeal such laws. The Delhi high court is hearing final arguments on a petition to dilute Section 377 so that it no longer applies to consenting adults.

The arguments against it are predictably that “it’s against Indian culture” and “it’s too soon”. There is ample proof of homosexuality’s long existence in Indian culture, before being criminalised by the British.

Gay marriage advocates in the US have used Loving in their arguments, most recently and successfully in California.

Some Black activists resent the comparison, and they are opportunistically supported by the same negative elements that can no longer be openly racist, but still feel free to attack homosexuals.

But Mildred Loving had no doubts. She was a quiet woman, who only wanted to be a wife and mother, and once she got the law changed to be allowed her privacy.

But last year, on the 40th anniversary of the verdict, she released a statement. In this she made the link between her name and the nature of the case she fought: “I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about”.

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