A Critique of the Naz Foundation Judgment

I have posted it here. A short comment before anyone reads it. This was originally written for the other blog Law and Other Things but now posted here. It was not intended to be against gays nor was it meant to convey any animus against any individual or group. It was written essentially in the belief that it would serve as a principled critique against what I considered to be an activist opinion of the Delhi High Court. I do believe that legalization of homosexual sodomy is primarily a political question and not a legal one. Thus it could be said that it was, in a sense, a critique about the means rather than the ends that Naz Foundation and other activist groups adopted.

The other intention of writing this critique was to initiate a discussion into the larger issue of how we view marginalized groups as well as to point out that there may well be other similarly placed groups we have not paid attention to which would also benefit from better public understanding of their predicament and an evidence based approach. Having reviewed a considerable body of evidence about adults who have sex with minors (this group includes both pedophiles who are attracted to prepubescent minors and ephebophiles who are attracted to post-pubescent minors), I am persuaded that outlawing all sexual relationships between adults and minors may not be justified and the question of consent is better determined based on the onset of puberty and in accordance with what studies show about the harm associated with particular acts.

I was hoping that the post would generate a debate that would flesh out details about such thorny questions and would help separate out the truth from common myths that appear be driving the Indian debate today. In addition, I thought that it would be a worthwhile occasion to examine the moral theories of John Gardener, Robert Wintemute, Ronald Dworkin and others in an era where science may have altered assumptions thought to be true in the past. Sadly, that did not happen. For those reading this post, I hope it provides them with a certain amount of insight that will drive them to ask more questions, reflect and gain better answers. Happy reading!

(PS: If you have questions, feel free to contact me).