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  1. I think Vikram Doctor has pointed at the real reasons for this flawed judgment, in his succinct article “A queer judgment” (http://timesofindia.indiatimes.com/home/opinion/edit-page/A-queer-judgment/articleshow/27227195.cms?messageid=21028832&intenttarget=no&r=1386820466067)

    Comparing this Indian case with the equally flawed judgment in the Bowers vs Hardwick case of 1986 in the US, Vikram says, “…Perhaps it was as simple as this in the (Indian) Supreme Court. The judges didn’t know any people of alternate sexuality, and so the many cases submitted to them of how such people have suffered under Section 377 of the Indian Penal Code did not ring as real as might the problems suffered by people they could identify with. Theirs could be a failure of imagination as much as a failure of courage to decide on a controversial issue. This was a case which would have cost the judiciary no more than the simple generosity needed to extend equal rights for all, yet they couldn’t do it…”

    Vikram also says regarding the Bowers vs Hardwick case: “…one judge, Lewis Powell, went with the majority without having any strong feelings on the matter. As he told one of his clerks, he didn’t know any gay people and didn’t feel the case merited more than 30 minutes of his time. (The irony is that the clerk he told this to was gay, but hadn’t really come out to him.) Powell could not personalise the case and so voted with the majority. Years later, in a very rare admission for a judge, he admitted he could have been wrong…”

    Now, here lies the fundamental problem. The honourable judges have absolutely no idea what they are dealing with in this case. They make their ignorance very clear in their comments, where they say something like “hardly 200 people have been jailed so far, so what’s the big deal” or words to that effect. They have missed all the main points here (the victimisation, the bullying, the blackmail by the police, the denial of dignity and human rights, the diabolical misinterpretation of what it means to be gay, the lies, and everything else that matters at a human level) because they simply do not relate to the issue at any personal level of understanding.

    It was left to two individuals to make a decision on something that affected millions of people. The ignorance and indifference of those two individuals regarding this issue — due to their deficiency in the relevant life experiences and due to their inability to exercise imagination and to view the issue while wearing the shoes of the gay community — made them simply pass the buck to the government. “Hey, sorry but we don’t know and we don’t care and we can’t be bothered to try to understand the nuances, but you are free to get the government to do something about it.”

    Now, this is where we can appreciate Obama’s sincere attempts to make the American courts more inclusive and more representative by bringing in suitably qualified people with different backgrounds as judges, who would understand various issues at a personal level and not just in terms of detached legalistic jargon.

    While our honourable judges can probably recite the IPC backwards and sideways from memory while brushing their teeth, they were simply not qualified at a personal level to deal with this issue; it all boils down to something as simple as that.