Idea-Expression Dichotomy + Originality

I want to write about these two things in this post. Essentially question how we understand them. So here it goes.

Idea-Expression Dichotomy

Which basically says that an idea is never protected. Only the expression is. So from the same idea different expressions might be drawn out and all these expressions would be protected. Let me try doing it with some Venns.

Venn 1

Venn 2

So I am thinking this model seems to assume within itself that some clear cut-distinction between an idea and expression can be made, right? Like one may get an idea and then expression flows from that idea. 

But here's another way of thinking. What if the idea and expression are so intimately connected that an idea itself cannot exist without the expression? Because think about this. No idea would ever be revealed or even form itself inside our heads unless we had a sense of expression for it- either literary, or images. Thus in legal terminology even if it is termed idea and expression- what we are probably really doing is distinguishing between two different forms of expressions- one a very basic/primitive expression(idea), the other a more sophisticated expression which apparently involves some labour on the part of the author (expression). 

But the distinction still is not so simple. Even the formation of the sophisticated expression is more often than not borne out of the primitive expression. for example often while writing out something, one gets a flash of inspiration not just for the content but also for the expression. Or even when one is not writing. For example, I remember reading some of Ruskin Bond's published diaries where in one entry he had made a list of random sentences which hit his mind (expression) which could be used in a story. "He had a bonfire of a laugh." was one of them. Artists always look for inspiration by browsing other works of art- i.e. sophisticated expressions. (though yet again, the nature of this flash of inspiration is questionable, but going by the parlance of contemporary law, it is safe to term it as an idea.)  So thus again, the primitive expression and the sophisticated expression or idea and expression get tangled up. Neither one seems to be able to exist without the other. So rather than expression being a derivative of an idea, shouldn't the Venn diagram look something like this?

Venn 3

Okay I know...it looks stupid. But I hope I could make my point. That an idea and expression by their very nature cannot be distinguished. There are certain things to be noted here.

1. In our law, it is fully accepted that an expression cannot exist without an idea. Because any expression must have some content~ say a narrative which the idea provides. (the case of poetry might be interesting to analyse in this regard.)

2. However, our law does reckon that an idea and expression are distinct entities, as illustrated by Venn 1.

3. Our law reckons that an idea can exist without an expression- because it is the expressions which are derived from the idea, and not vice versa. In fact the nature of the idea in our law is left somewhat mystical. But it is clear that an idea is not a free floating entity- it belongs to someone, but is left free in the copyright law only for public good and progress (utilitarian concerns), while it is not in other forms 

of IP like patents. [How an idea comes to be owned by someone is yet another interesting question. Is it because an idea originates from someone, or because a person mixes his labour with it (ok- this is vague train of thought here- Ignore for reading purpose for this article).]

However, as Venn 3 illustrates, this expression-flowing-from-idea model may not necessarily be true. then how does the law attempt to achieve the idea-expression/primitive-sophisticated expression dichotomy? Of course then law says that all this is a question of fact. It's upto the Court to decide whether infringement has happened or not- that is whether there has been encroachment upon another expression or idea? But that again leaves open how a judge's mind decides the distinction between the two. Which brings me to my second point.

Originality

Originality is not defined again, but is basically the yardstick to distinguish whether the disputed expression is based on an idea or infringement on another's man expression. So the judge determines the distinction by determining whether the sophisticated expression in question is actually original. In RG Anand v. Deluxe Super Cassettes, they laid down that to determine originality, one needs to know whether from a reasonable man's point of view the two expressions seem similar, so that one gives the impression of the other. Now this is as vague as it gets, even discounting the myth of the reasonable man. Any expression is likely to remind someone of a similar content. For example, V for Vendetta gave me an impression of 1984. Now, how is a person supposed to view two expressions supposedly "derived" from the same idea, without getting an impression of the idea? This confusion is really apparent in this article by a leading IP lawyer. The problem really manifests though if an expression is an integral part of an idea (for which I've argued earlier) then it is necessary that any idea will be mixed with one expression or the other, and every expression will thus give an impression of the other expression, because the idea is formed only by the unity of all these expressions. 

Paradoxical, quite.

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A Useful Rape Analogy

(Sourced from: http://downlo.tumblr.com/post/10176644689/a-useful-rape-analogy)

Also see: http://lawandperceptions.blogspot.com/2011/02/fresh-view-of-rape-culture.html

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Implications of Kelsen's conceptualism

I've been reading Kelsen's Pure theory of law, and have been finding his conceptualist methodology fascinating. The entire idea of construction of concepts before delving into legal discourse seems to be a fresh change from the empiricism whereby legal concepts as such are derived from the society.

Kelsen's calls them "concepts", but to my mind, it is better to call them "assumptions" because Kelsen does not propose their absoluteness. Rather, he actively denies the same. This is totally in contrast to empiricism, where by virtue of being derived from the social experience, the concepts, in essence become facts. Absolute, and the single truth. The latter is limiting in many ways because, within its ethics, it prevents multiple approaches to the same problem.

Though again there is sense in distinguishing between what Kelsen understood as the ethics and scope of a discipline. (ethics is just a term I'm using here- nothing Kelsenian about it as far as i know.) Ethics denotes what would be allowed in the vision of a particular discipline, while scope defines the way a particular discipline would proceed based upon its concepts, or assumptions. It is something like saying, "I think it will rain today, so I will take an umbrella with me outside. I know you think it will not rain, so you are not taking your umbrella. I'm not saying that your notion about no rain is wrong, but I would rather not proceed upon it." Here the concept for me is that it will rain and I premise my theory about taking an umbrella upon this concept. The concept for you is that it won't rain and you premise your theory about not taking an umbrella upon that. Neither of us can know for sure if it will actually rain, so I cannot outrightly refute your concept. Consequently, rather than being absolute, my concept will remain only an assumption. On the other hand, if I were an empiricist, that it would rain would be a fact I'm absolutely certain about.

In this regard, I think I would be more inclined towards the conceptualist methodology than the empiricist one, simply because facts are not truth. Which means that facts change with changing perspectives- the situation is somewhat like that of Schrodinger's Cat in a box which can never be opened, and hence the truth cannot be determined. A more illuminating example would be perhaps be to think of the idea of life after death. For those who believe in it, it is fact. For those who do not, it is not. And absolutely no one can know the truth. Similarly, when a concept is made to root in a fact or empirical observation, it does two things: a. refutes the viability of concepts rooted in different facts. b. ignores that the truth about the subject lies in something more than a fact. Which is where, in my view, conceptualism prevails.

Prima facie, Kelsen's approach might reek of philosophical nihilism. But for Kelsen, it didn't mean that this whole exercise of formulating theories was a dead end, as the truth of any could not be determined. Kelsen, instead argued that each of these various assumptions, or concepts in his words, were valuable in context of their own discipline, and only when all of these discourses are taken together, that a real picture of the concerned subject matter begins to emerge. This way philosphical absurdism rather than nihilism would more be Kelsen's line of thought.

What is important is that Kelsen uses exactly this argument to establish law as an independent discipline, clear of political, social and economic influences. In doing so, Kelsen is not unaware that such influences in deed have a significant effect upon shaping the law. But for Kelsen legal discourse is a matter of academic convinience, and not truth. Therefore legal concepts must be totally divorced from the "non-legal" influences, thus carving the legal discipline as distinct. This, in no way means that legal concepts are the only way to understand law, or even that law can be fully understood merely by the use of legal concepts. This is where Kelsen changes law from being a mere tool for the exercise of political power as envisioned by classical postivism.

I would like to compare this idea to my understanding of an anarchist conception of law, whereby law is not afforded the status of being a distinct discipline. This is basically because for the anarchist, law acts as something external to an individual. Which means that in many ways, law would sanction violence and coercion upon individuals due to some expectations and obligations under law. I was very intrigued to find that Kelsen had this point in mind too. He says in context of politics, "If the masks are stripped away from actors on the political stage and we no longer see the impersonal state 'condemning and making war', what is revealed is the reality of 'men putting coercion on other men.' (1973:67)" [Quoted from Cotterell 2003:36]

Interestingly, Cotterell sees this as Kelsen's committment to democracy, and uses it to contrast Kelsen against the Austinian illimitable sovereign. In my view, however, it is more. It is a warning against using "supra- individual forms" (a term used by Cotterell) to view human actions, without taking into account that all these supra-individual forms are built upon a certain set of concepts which are essentially assumptions and not absolute truth. Because if this happens, the danger that violence will be justified along with curtailment of freedom, increases infinitely. Consider the sovereign issuing a command to put a person to death. Politically, the action of putting that person to death would thus be justified. But legally, if that person has not committed any offence which warrants such punishment, this action cannot be justified. Thus violence which was being justified on account of politics, in this case would not be justified on account of law. There is an obvious distinction between Austinian and Kelsenian conception of law to be shown here. But I think Kelsen's point here is much larger: that justifying any action from the point of view of only a single discipline is a folly. This is more about than just separating law and politics.

I actually find here some parallels with the anarchist conception of how to treat or view human actions. Anarchists condemn law as a separate discipline only because they assume that a single discipline would be used to understand and put into perspective, human actions. This in turn, would enforce violence and curb human freedom, because human actions and experiences are too rich to be understood purely in a legal perspective. Kelsen in fact, argues the same. But then he says that a single discipline should not be used to understand any human action, thus solving anarchism's problem with recognition of law as a discipline. Though of course, how this is to be achieved, still remains obscure.

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A Fresh View of the Rape Culture

The recent sexual assault on CBS reporter Lara Logan in Egypt, once again brings into focus the continuing use of sex as a tool for violence. This is a phenomenon which transcends all cultural boundaries, for people everywhere face it. And it doesn’t look like it is coming to an end anytime soon either. Maybe it is time to consider sexual assault from an alternate perspective.

The contradiction of “inviting to be raped”

One of the many reactions to the assault on Logan was that by being beautiful, and a female war correspondent, she was practically throwing away an invitation to be raped.  Not that this is a new assertion. We’ve all heard of women who are “asking for it”, by dressing down- and not just from men, but from other women too. And to that, we reply by justifying with statistics, the number of women who get raped in burqas, when all covered up. But that is hardly the point. The question to ask is, why should a woman be raped depending on how she looks or dresses, when a good-looking man clearly won’t even if he goes half-nude? Further, how can there be even an “invitation” for rape considering that rape is something which is at root, non-consensual? Blank Noise, an anti-street harassment movement, succinctly answers this with its slogan, “I never ask for it,” simply because it would be a logical contradiction.

The rationale of sexual assault

Unlike popular belief, the rationale of sexual assault is not lust, but domination. Most honor killings are compounded with rape by a family member- the point of rape thus being to show the victim her place, so to say. In other words, telling the victims through an act, that they are not human enough to crave for the same freedoms. And hence a sexual assault, because gender is what it is targeted, after all. The point is to shame enough to make the victim believe inside that what she wants can never be realized, so stop attempting. All kinds of sexual assault, including those against men or transgenders, basically thrive on the insecurity of men about their “manhood”.

Tackling sexual violence

The only effective way to tackle sexual violence is by defeating its very purpose- humiliation. It’s time that those targeted realize that since they cannot ask for it, it’s not their fault when their bodily privacy is invaded. Though, of course it’s much harder to not feel humiliated when the society is constantly telling one to. That’s how so many instances of sexual violence go unreported. The assaulted need to be strong, and social perceptions need a change.

How law reinforces the rape culture

It’s not just society, but our very laws too, which reinforce this culture of victimization under sexual violence. Take a look at the crime of rape- what exactly are its constituents? Not just invasion of privacy, but also the “mental trauma” caused to the rape victim. So even the law ends up saying to the raped person, “Feel humiliated that you’ve been raped, that’s what we are punishing for.” Whereas law should be scaling down the punishment, by recognizing no humiliation for the victim (and hence not punishing for it), most advocates call for harsher punishments. However, it is forgotten that as long as humiliation is recognized as an essential part of sexual assault, the crime will still thrive, because it would manage to achieve what it intends.

(For open discussions between men and women regarding this culture of sexual violence do consider participating at the Blank Noise blog at http://blanknoise.org.) 

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Is Sedition an outdated concept?

In light of the recent incident of Binayak Sen's life term imprisonment by a Chhatisgarh Sessions Court, the shock has been widespread and almost unanimous. That a doctor who let go of the luxury the world had to offer to dedicate his life to work with tribals should get a life term in jail on the charge of sedition seems most outrageous.  There have been many voices protesting this judgment. Most of them seem to say that such a guy could not be responsible for sedition. In fact, let me try to divide the paths that these voices have been taking as following.

1. That Binayak Sen does not fulfill the conditions for guilt for the crime of sedition under Section 124A of the Indian Penal Code.

2. That evidence supposedly against Binayak Sen with regard to aiding rebels is based on flimsy ground and has been misconstrued by the Court.

And of course there is much weight in these arguments. However, it is notable that both of these arguments are working within the framework of the offence of sedition, that is their major object is to prove that Binayak Sen is not seditious. Now of course, it might be argued what exactly is seditious? Section 124 A of the Indian Penal Code defines it thus, 

" 124A Sedition
Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards. [* * *] the Government established by law in [India], [* * *] shall be punished with [imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.


Explanation 1-The expression "disaffection" includes disloyalty and all feelings of enmity.
Explanation 2-Comments expressing disapprobation of the measures of the attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
Explanation 3-Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.    "

And of course, critics of the judgment can thus come up with a third argument to say:

3. That to be the medium of exchange of letters from a single person in jail to a Kolkata businessman cannot constitute "words that attempt to bring into hatred of contempt"..." or disaffection towards the government established by law."

Some others might come up with a fourth argument:

4. That the definition of Sedition under the Indian Penal Code needs an overhaul as it infringes upon other rights of the individual...say, the right to freedom.

Again, it come back to the same thing~ An attempt to prove that the actions of Binayak Sen fall out of the category of seditious...either legally, or morally, and hence he should not be convicted.

However, in this post, I will attempt to argue that the very concept of sedition is outdated and should be done away with.

If one looks at the history of the offence of sedition, it of course, emerged with the emergence of absolute States and assumed its present form with the colonial rule. In fact, sedition was omitted as an offence by Macaulay in the first version of the IPC (probably not intentionally though), and was brought in by Sir James Fitzjames Stephen almost a decade later. Much of the history of the legislation seems to convey its logic by citing what a huge problem it could be if personal religious interests clashed with the interests of the State. So that say, if a person was advocating that the State was in violation of Hindu religious beliefs, and thus inciting violence against the State, or say, saying that Muslims are set to destroy Hindus, and thus inciting violence within the State generally..."sedition" comes to the rescue, whereby it says that this won't do.

So Sedition has been traditionally a secular tool used by the State to fight against the arch enemy which Statehood, in its history, has been bent on replacing, that is, religion.

Switch to the present scenario, though. We live in a world where the State has many important enemies, as opposed to just one. Take terrorism itself for example. And almost 99% we equate the enemies of the State to the enemies of the people living within the State, which incidentally is a conclusion which is not always true. It is worthy to note that as citizens of a State and with the spread of the hegemony of nationalism, we have begun to equate our interests with the interests of the State. But is that really the situation? The most primary interest of the State is to ensure its own existence. True, that to much extent, there is a marriage of convenience, for we see the State as our protector from wars and suchlike, as largely propounded by John Locke and Thomas Hobbes in their theories of Social Contract; and if the State ceases to exist, we would supposedly be more vulnerable. But to equate all aspect of State action with our own personal interest would be a sorry mistake.

It is important to understand that the idea of a State itself has been founded upon individual interests of power. The State is in fact, a medium to retain power clusters, and thereby to maintain peace in the territory. Mostly, the idea is to find a balance of interests, which effectively means the suppression of one kind of interest.

As I have already noted in one of my earlier posts, that the values which a State tries to establish as standard, are not actually universally standard values, but values of a particular group, which concur in fostering the existence of the State.

And now, what does offence of sedition actually entail? Suppression of any value which goes against the interests of the State and not necessarily the interests of the people at large. It is another matter that we are hegemonised into thinking that the two are one and the same. ( Read Benedict Anderson's Imagined Communities for more on this perspective of how nations are imagined.)

There are many instances of this, one which interests me to a great extent, being the approach to tackle terrorism. I do not say that I'm agreeing with the course of violence that most terrorism takes, but note that Section 124A , bans not violence, but words, and words which disseminate opinion the "Government established by law", thus essentially perpetuating the idea that Whatever may, the Government is right.

Critics of course would argue that if such a provision were not present, there would be total chaos, people going crazy left and right and the spread of propaganda uncurbed. To them I just want to reply, Consider the present situation, is it any better? We have let Binayak Sen be jailed, and yes, I would agree he was an opposer of state policies, for life.

Only because it has been done in a supposedly less-chaotic manner and as per procedure doesn't mean the situation is less insane. Procedure, is of course, something to abide by, but to say that the crime of sedition fosters procedural law should rather should make one ask...procedure for whose benefit? 'Cause it is worthy to remember that even Hobbes and Locke agreed that it was a Social Contract. One thing which then becomes pertinent to ask in the present scenario is whether we as mere people, and not people of any particular nation-State or regime, nor as citizens of a country, whether we, as mere human beings have been reduced to the lesser beneficiaries of such a contract? Sedition is one tool which lets the State exercise undue influence in its interest over tools for our interests as human beings in the contract, i.e. our human rights. It's high time we began asking, How far does the Reasonable Restriction Clause really stand meaningful in our lives, especially once we break out of the Statist universalism that we as people, and the State are not one and the same? And is all the violence imposed by the State in connexion with the restoration of that order which is in its own interest, worth it?

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Some thoughts on the Naxal movement in India, I : Separating the tribal from the Naxal

Let's start with the obliteration of the mainstream prejudice that Naxals are a threat. Though in fact, this statement in itself is ambiguous- threat to what exactly? The present governmental system, the idea of India as a nation-State, or the socialist-liberal ideological setup? But for the moment, let's just leave aside any such considerations, and look  at the Naxal movement from a very neutral point, from the eyes of someone who has just begun its study and is therefore incapable of drawing conclusions with regard to its nature in the present state.

That being said, one of the most striking features of the Naxal movement is that the movement centres around the tribal community and their rights. Essentially the realisation of these rights under the Naxal movement is sought to be achieved largely via communist routes. A look at the history of the Naxal movement will tell us that it was organised and channelised mostly by political parties of the communist outlook, which, in all political correctness, appalled by the socio-economic, cultural(?) injustice prevalent in the society, hoped to bring a 'democratic regime' in India. Concentrating specifically on the tribal communities, which seemed especially piqued by the post-independence setup-the channelisation of these groups began, to achieve the India of dreams, so to say.

But whose dreams? There are actually two questions to ask here- First, was this the India everyone, specifically, the tribals here, were dreaming of? Second, did the tribal dream even have an India? I intend to focus here upon the latter and the more basic of these two questions. This question essentially entails asking what was/ has been the thing which tribals have been aspiring for? Thus, I'm implicitly but pertinently distinguishing the Naxal movement from the 'tribal  movement' (for the lack of other appropriate term.) But I also intend to find out where these two do find a common ground and converge.

The starting point of most recent tribal protest which is often also thought to be the beginning point of Naxal movement is 2 March 1967, when local landlords attacked a tribal youth as he was going to plough his land after obtaining a judicial order in the now famous Naxalbari village of WB. The attack led to retaliation by tribals which left 9 tribals and 1 police sub-inspector dead. It's to be noted here that the dispute was basically agrarian and/or feudal. An infight between tribals and landlords, where the former wanted control over land portions, while the latter didn't want to give it up. 

It is actually interesting to note that there's a long history of disputes of this nature in India, since atleast colonial times, when the diku-adivasi infighting and rivalry with regard to land is pretty evident. A tribal village functioned under the Mandali system (atleast in the Jungle Mahal area) whereby the Mandal head encouraged cultivation of waste lands under him- which were granted to the tribals. Gradually though, among other factors, with the increasing pressure of revenue collection by the British government (so much so that there was actually a commercial British Zamindari company in the area called the MZC or Midnapore Zamindari Company, which made its profits solely via revenue collection), the ancient rights of tribals increasingly started to be ignored. Mandal heads concentrated on profits- arbitrary taking away of land from tribals, and restriction upon gathering of forest produce became common. That's when tribal resistance to such instances began developing. (Refer Santal History from the Jungle Mahals). So essentially it was a fight for land, again. 

The 'problem' with tribal community was/is that they had little notion of the concept of State. They'd hardly experienced the full thrust of Mughal rule, and the craze of revenue collection in colonial times, to say the least, bewildered them. It escaped them how ancient tribal rights like those relating to forest produce collection and pasture lands could be regulated by State. For them these were communal rights- non-derogable rights possessed by them by mere virtue of being an adivasi. The notion of individual property which came with the State's claim of propriety over forests, pastures and other tribal lands, kinda escaped them. Thus the tribal resistance has always been fixated upon the restoration of these communal rights back to the tribal people. This, in tribal eyes, is justice for them.

Now let's contrast this with the Naxal movement, which, if one can put it this way, thinks in wider terms.First, it thinks in terms of 'wider justice' to the tribals.  Second, it thinks in terms of this 'wider justice' to tribals implying a better India. In fact, these two ideas are largely inter-related, and I won't say that the second is an implication of the first or vice-versa, i.e. there's no cause-effect relationship between them. 

The tribals, they are not thinking in terms of India and its development- they are just thinking of tribal communal rights. And tribal communal rights, for them, are not a means to the end of a better State. The achievement of these rights for them is the end itself. And in fact, tribal communal rights and India (as a State) and its interests come largely into conflict, for the very idea (root of existence) of State is based upon the idea of individual property: this means State is essentially seen as an individual with a right to own property. Further, the authority of the State as an individual is implied from its sovereignty. This means that if the existence of the State is threatened, almost every right (here 'right' as understood in the common sense of word, Right to freedom of speech, free movement, Life, etc.) is derogable by the State, as is proved by the exclusion clauses to the same effect of the various international conventions on human rights today. (eg. ICCPR, ICESCR, Geneva Conventions, etc.) (interestingly, this implies that the State as an individual has superior rights than other individuals.)

Now if communal property is directly opposed to notion of individual property, it brings it into direct conflict with the concept of State. An example of this may be cited in revenue collection. (upon which I hope to expound later.) So the State as an institution itself is likely to threatened by tribal movement.

The threat of the Naxal movement is different, and is concerned with a particular State set-up only. The Naxal movement is openly critical of the capitalist State and liberal values. In contrast the tribal movement is implicitly critical of the institution of State in itself. [..thus dubbing tribal movement as subaltern, and Naxal movement as elite, as per the understandings of Gayatri Chakravorty Spivak and Dipesh Chakrabarty]

The difference between Naxal and tribal movement, thus being established, the next step becomes to find out, when the State says, 'we need to counter Naxalites and Maoist insurgency,' what is it really referring to? The Naxal movement, or the tribal movement? Or both? And if both- is it referring to both of them separately, as in on the separate grounds as clarified above, or do Naxal and tribal movement indeed have a common ground of convergence somewhere?

DISCLAIMER: When i use 'tribals' in this post (and in subsequent ones relating to this theme), I do not mean an actual person from the tribal community. I'm rather referring to a concept understood as the tribal. Same goes with 'Naxal'/'Naxalite', whereby I don't mean to refer to an actual person from the movement, but rather to the idea or concept. Actual persons, in my opinion, are never made of one single idea. So a real person might incorporate both tribal and Naxal notions together in himself.

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Determining the moral quantum in homosexuality

Everyone hates our criminal law professor because...well, of many reasons. Anyway, one of the primary of those is that he argues that homosexuality is against public morality.

It's kind of one of his favourite topics actually, and due to my...ahem...pervert instincts, I find it wildly interesting, even while others die of his rant about the Naz Foundation case. So he goes on to say what a dire judgment it is, for it is detaching criminal law from the precepts of public morality. And then everyone goes nuts because mahn, we are so elite, and how can we ever think that homosexuality is NOT the norm!

Well, let's consider what public morality really is. Ummm...no that's a really hard question to consider in such limited space, so it could be something you could just mull upon. But consider this. We say it is NOT immoral to be homosexual. Yet honestly how many of us are really comfortable with it? I know for one that my next-door neighbour definitely is not.

Morality is not a redundant concept. It is visible in the way we react to things. Immorality manifests not only in the instance of Ram Sena chasing harried couples, but also when one discreetly sniggers at PDA-ers. Simply saying that Public displays are okay, then does not make it moral for the person saying it. Because the comfort level with the  thing is still absent.

Now notice that the people who contend homosexuals to fall within the moral ambit, do live within the symbolic where morality is the sanction to righteousness. They do not try to blur the boundaries of morality, rather kinda strengthen it, by recognising it exists, and then recognising its importance by heavily parading (or trying to), the morality of homosexuality. In other words, the attempt is just to try to expand the boundaries of morality, rather than blur it. 

All this points towards, first, how important morality is to our society; and second, homosexuality is still not a part of public morality, because the personal comfort level with it does not exist. A homosexual is something exotic...and for us elite, something exotic to be patronised. A homosexual is NOT mundane...howsoever much we try to act that way ( in order to slash the accusations of being the elite patron against us), but in our minds, a homosexual is still excitement, a new possibility, something off-the-track. It's not mainstream, howsoever much we try to convince ourselves by saying it aloud. A homosexual is still a deviant. Hence, not within the public morality. That's why it's easier to let go off a pass made by a hetero, than by a homo. The latter is scary or more exciting...in any case, it persists longer in the memory.

But some food for thought: Is it so bad being qualified immoral if you are homo? I mean as long as you get your due rights...via the rights jurisprudence, which is taking over the criminal law jurisprudence, as propounded by Habermas? ;) That's where Dr. Shukla needs to be questioned, if you will.... heehee.

On the other hand, what makes an immoral being so ostracising that morality HAS to be attributed to him? In other words, morality really is an essential if one wants to persists in a society, isn't it?

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Why live-ins should not be legalised

I came across an article today hailing the steps being taken by the Indian judiciary towards granting a legal status to live-in relationships. However, even without honking the conservative argument that live-ins destroy the sanctity of marriage, blah, blah, is live-in legalisation seriously something to cheer about?...

Let's take a look what the legalisation of live-in relationships will really entail: right to maintenance, right to property and inheritance, even right to enforce co-habitation....in short, all the ingredients which make a marriage.  What will then make a live-in different from a marriage? The absence of a ceremony? So marriage is the rich guy's live-in who can afford a party...how lame does that sound?

I've been hearing a lot of talk about how legalising live-ins will give them social sanction...but will that really happen? Consider that the widow remarriage today is still a kind of social stigma, even though the requisite legislation for it had been passed some 150 years back in the form of The Widow Remarriage Act, 1856. And even though inter-caste marriages are legally permissible, they do not enjoy social popularity. On the other hand, child marriage still has social sanction, even as laws to discourage it have been implemented. 

Also consider that people usually enjoy attending parties, and hence are less likely to grant social sanction to something which excludes them from the benefit of one. =P

But forget arguments breaking the defence of legalisation. Think for a moment what a live-in really means. The very concept of a live-in, which is essentially anarchist in nature, exists outside the purview of law. While marriage lets the law intervene into the sphere of personal relationships, live-ins try to escape this interference by law, in a field which the proponents of live-ins consider essentially private. The concept of a live-in entails the shift of risk-bearing to the people in the relationship. It entails freedom by the removal of obligations, by giving the opportunity to walk-out. And sometimes I fail to understand what's so wrong about this...True, one may get hurt, but isn't that worse than living a hypocrisy of obligations when you don't even feel any kind of attachment to a person?

Well, anyway, that isn't exactly my point here. My point is that live-ins are an entirely different concept from marriage. But by trying to legalise it, courts are converting live-ins into pseudo-marriages, and thus eroding the very aim of a live-in: experiments, and the freedom to ditch an experiment gone awry.

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