Monday, July 06, 2009

Homosexuality is not a crime anymore

In a landmark judgment, Delhi High Court has pronounced that homosexuality is not a crime. This is a historic verdict that sets the course towards modernizing our country living up to the promise India made to its citizens when it became independent. It is a long journey for India to unshackle itself from the hold and sway of bigotry and prejudice dominated by ignorance, which is the weakness on which religion thrives, to say that it is ready to overturn the opinion of majority to protect a minority. I never thought that India would address the issue of homosexuality in my lifetime. And yet, Delhi High Court has set a precedent that clearly upholds the constitutional rights granted to citizens of India whatever their sex or sexual orientation is.

Section 377 of Indian Penal Code created nearly 150 years ago was borrowed from the moral ethos of Victorian times where homosexuality was considered a crime and was a punishable offense. The ethos was based in orthodoxy of religion compounded by celebration of ignorance. Origins of that law come from long-standing bigotry perpetuated by religion against people who are considered deviants, either in practice or in thought. The modern science and research has thrown light on the subject and has found homosexuality natural, not an aberration, and yet, most religious people continue to consciously remain ignorant and repeat the clich├ęs that are downright wrong and sometimes dangerous.

While the West in general and the liberals and rationalists of the East in particular detest the ideologies, ways and methods of Taliban, many religious and nationalist people of the East love Taliban. It is nothing but an exaggerated icon of their ideals. Taliban loves to ban books, so do the religious and patriotic people of the East when and where necessary. Taliban loves to cover up the women from head to toe all in the name of protecting the women, so do Indian colleges who mandate that women should not wear jeans and t-shirts all in the name of the protecting them from molesters and eve-teasers. Taliban loves to blur the lines between morality and criminality, and so do Indian religious people who believe that anything they don’t like is criminal.

When it comes to homosexuality, all religions of India stand united. The same VHP which is vehemently antagonistic to Indian Muslims now sings the same song. Christian groups who get targeted by Hindu groups are now joining hands to protest in unison. Muslim groups, Christian groups and Hindu groups of India have all agreed to stand united on this issue to condemn the HC ruling.

Baba Ramdev, who is an icon to many religious Hindus, said:

Do these people consider homosexuality natural?... These (Gays) are sick people and should be sent to hospitals. Then they can marry or stay bachelors like me…

According to the HC ruling, homosexuality is no longer considered a mental disorder as of 1973 when it was removed from Diagnostic and Statistical Manual for mental disorders. World Health Organization (WHO) removed homosexuality from its list of mental illness in 1992.

Muslim clerics in Delhi said:

India is secular, but most Indians are religious and no religion allows this.

Not many people recognize this but it was secular Nehru who emancipated Hindu woman from the clutches of Hindu tradition which treated her as property of man without rights of her own. When Nehru proposed to pass the Hindu Code Bill there was opposition from Hindu groups who insisted that there should be no provision for divorce since Indian culture does not allow it. They also objected to giving property rights to a woman reasoning that it will upset the normal Indian family. They were sure that Indian family as knew it would cease to exist. They were also not happy that Nehru was forcing Hindus to give up polygamy which according to them was sanctioned by Indian mythology. And yet, Nehru prevailed. Being secular doesn’t mean bowing down to a religious sentiment. Being secular means protecting an individual from the religious traditions that seem to discriminate people on their sex or sexual orientation.

Times Now, a news channel, has said that majority in India has favored this verdict. I don’t think so. Indian politicians knew their constituencies more than others, and many of them have come out to oppose this ruling. Also, the support for this ruling seems to be confined to a minority and that too in the urban areas. In most villages, towns and even the cities of India, homosexuality is still a taboo. Here are some of the snippets of readers to THE HINDU.

India is a pluralistic country with a rich ethos and culture. Homosexuality is opposed to the nature and culture. A small minority cannot demand that the country recognise its way of life. Any move to decriminalise homosexuality would be an attempt to destroy the family system for the sake of the sexual minorities. [Selvaraj, Chennai]

On one side we celebrate India’s pluralistic nature, which inherently means that it accommodates people of many faiths, cultures, races, languages, etc, and yet we go on to deprive a group’s identity and way of life demonizing them and criminalizing their private life practices. That shows how much we don’t understand pluralism means.

Homosexuals are not the only marginalised group in India. Not that they should be discriminated against but I think a minority group should not get preference over other groups. [Malni Raghavendran, Chennai]

A modern nation is formed on the basis that an individual’s rights should be protected from authority of a state or any powerful group, and that the interests of minority group should be protected against onslaught of the majority group. Decriminalizing homosexuality is not tantamount to giving them ‘preference over other groups’. How is that deduction possible? Does allowing a person to live the way he wants to live in his privacy translate to preferring his rights over others? There is something grossly wrong with that kind of thinking.

Homosexuality will have a negative impact on society and the traditional family system being followed in India over thousands of years. [Vijay, Bangalore]

For many people, homosexuality is bad because it doesn’t make a family, which comprises traditional mom, dad and kids. Since homosexuals do not procreate they are an aberration and an anomaly. Indulging in sex other than to procreate is a sin and the religious groups want it to be criminalized. So how about masturbation? It does not procreate. Should be it a criminal offense too? Do we always have sex onto procreate? Shouldn’t we ban condoms first?

But legalising things over which we have no control, including abnormal sexual behaviour, may lead to an increase in the incidents of sexual abuse. [Gopala, Hyderabad]

The repeal of Section 377 will only lead to an increase in homosexuality. Children who work for daily bread — not a negligible number despite the ban on child labour — can be subjected to harassment because of the abuse of the freedom gained, in the absence of a law restricting it. It is better to think twice before setting the genie free. [K.C. Joseph, Thiruvananthapuram]

Sexual abuse and child abuse are already taken care of by other set of laws which are not repealed and still in existence. There is no correlation between abnormal sexual behavior and sexual abuse. Are we saying that ‘abnormal’ sexual behavior, such as homosexuality, leads to an increase in incidents of sexual abuse, while ‘normal’ sexual behavior, such as heterosexuality, doesn’t?

Is the sexual abuse of a boy by another man somehow more harmful to society than sexual abuse of a girl by a man? But heterosexuality is legal! So how come we are not banning heterosexuality?

The freedom given to individuals is accompanied by responsibility and accountability. Freedom sans responsibility is dangerous. The repeal of Section 377, in the name of respecting the freedom of sexual minorities, will create social disharmony resulting in the disappearance of social values. [K.T. Krishnaswami,Singaperumal Koil]

The court observes: “Moral indignation, however strong, is not a valid basis for overriding individuals’ fundamental rights of dignity and privacy. Constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view”.

India took 150 years to reverse a law that criminalized an activity which is now considered natural though different from the majority point of view. India has come out of its traditional past and colonials shadows to come to terms with creating a modern nation where every individual, however deviant or different, is given the same rights, thereby allowing us to express ourselves in speech, in practice of faith and even in sexual orientation.

We have a long way to go as a nation to educate our masses, our elite and our leaders in understanding basic principles of our Constitution and its interpretations to sway them away from the prevalent opinions that originate in ignorance and prejudice.

Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it.

B.R. Ambedkar.

20 comments:

  1. finally we have stepped in 21st century !!!!

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  2. one doubt.. was it homosexuality or sodomy that was a crime? cant believe sexual preference which is basically a "thought" was a criminal act!

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  3. Hi Sujai. Great article. You seem to answer every point thoroughly.

    Can I ask you a question regarding this issue? Its about the legality. My friend told me that since its only the Delhi HC who decriminalized homosexuality, this landmark judgment holds water only in the Delhi Jurisdiction, and not in other parts of India. Is this true?

    I am not very sure about how our legal system works, but since its not the SC who made this ruling, then that means Indians who are not in Delhi still face this age old discrimination right? Can you explain this part to me? I would really appreciate it. Thanx in advance.

    - Kima, Mumbai.

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  4. Hi Kima,

    I think this is why it applies across the country

    http://tinyurl.com/kljb6y

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  5. Sujai,

    Many people equate homosexuals with rapists and molesters. Maybe demonising them this way helps the gay bashers sleep at night.

    Great article!

    -- AV

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  6. some Muslim clerics and scholars favour de-criminalization of homosexuality, saying that while Islam does not permit homosexuality, this doesn’t mean it should be equated with criminality.

    ‘‘The Quran condemns homosexuality, but doesn’t prescribe any punishment for it. It’s a sin, not a crime. Sin is between Allah and the sinner, but crime concerns the entire society. So, sexual minorities should be left to their conscience. They are answerable to Allah for their act and should not be treated as criminals,’’ said Islamic scholar Asghar Ali Engineer.

    Maulana Abu Zafar Hassan Nadvi, a cleric, too accepts that since the Quran is silent on the punishment for homosexuality, it should be treated as an irreligious, immoral act. ‘‘Every non-religious act is not liable to be punished. Just as we don’t pronounce death for atheists, homosexuals should be left alone until they get reformed,” said Maulana Nadvi.

    Some clerics maintain that since Indian state is secular, it should not press for laws guided by religions. ‘‘Why should we expect that what applies in Saudi Arabia or Iran must also apply in India in regard to punishment for homosexuality? As a religious person, I condemn homosexuality. But I don’t have the right to declare homosexuals criminals,’’ said Maulana Zaheer Abbas Rizvi, a Shia scholar and member of the All India Ulema Council

    ~ Vinod

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  7. Because of this judgment tailors in Delhi are now asking: "Sir, do you want only front zip or one in the back also."

    -chirkut

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  8. Thanx a lot for the link @ Anonymous [July 06, 2009 11:43 PM]

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  9. High Court's judgment should be opposed. Now that homosexuality is no longer a crime, bosses will abuse this provision to terrorize their subordinates.

    -Su Su ki jai

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  10. sujai ,

    Homo sexuality is a sin and this abnoxious practise will have deep impact on Indian family values .

    There exist some collective ,subtle social responsibilties which every individual must abide by .

    Not everything can be justified under the aegis of freedom of will and expression .

    so ,what is stopping us from legalizing INCEST e.t.c ????

    If history is to be taken as a testimony of truth ,it clearly teaches us that all these abnormal unnatural relations have eroded the society from within ,leading to the utlimate demise of society .

    we have far batter issues to address like womens rights e.t.c .better we concentrate on those issues rather than encouraging all these unnatural relations .

    ~ ernesto

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  11. Not everything can be justified under the aegis of freedom of will and expression

    This presupposes choice in sexual orientation.


    so ,what is stopping us from legalizing INCEST e.t.c ????

    Presence of a VICTIM.

    If history is to be taken as a testimony of truth ,it clearly teaches us that all these abnormal unnatural relations have eroded the society from within ,leading to the utlimate demise of society

    Which history? Story of Sodom? Scripture cannot be a sole evidence of history unless supported by archaeological evidence.

    we have far batter issues to address like womens rights e.t.c .better we concentrate on those issues rather than encouraging all these unnatural relations

    Unnatural? Homosexuality has always existed in mankind. No society is proven to have suffered due to it. It will always remain in the margins of the human society. There are 300 odd species of animals with recorded homosexual behaviour (readup on bonobos). Homosexuality is not explicable through behavioural or psychological factors alone. This hints to a genetic cause. So, still not natural?

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  12. It clearly shows how stupid a channel Times Now is when it says majority of Indians welcomes this.Clearly describes their ignorance about the Indian society

    -Jayakrishnan

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  13. "so ,what is stopping us from legalizing INCEST e.t.c ????"

    "Presence of a VICTIM."

    ==

    You're ASSuming that all incest cases have a victim - what if it's consensual?

    -chirkut

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  14. @anonymous

    'so ,what is stopping us from legalizing INCEST e.t.c ????

    Presence of a VICTIM. '

    your argument is simply based on "ASSUMPTION" that Incest happens wihout mutual consent .what if it is agreeble to both the parties??? would you legalise INCEST then?

    Nature has clearly affixed purpose for every action . the continuity of our race happens only through procreation and being hetrogenous fulfills this purpose.

    i fail to understand what purpose 'homosexual ' carry with them .

    It has been clearly proven that offsprings of INCEST relations are born with Genetic disorders . the answer for this is very simple .
    Go against the impeccable rules of mother nature ,pay the price .

    now you can understand why i termed both Incest and homosexuals relations as UNNATURAL.

    'which history'

    researchers have attributed in breeding (INCEST) to be one of prime reasons for the demise of Roman empire .


    'It will always remain in the margins of the human society.'

    the right question that needs to be answered here is 'why the people of those times never tried to legalise all these kind of unnatural realtions.

    so,i conclude,for the collective welfare of our society we are not going to agree to any these unnatural relations ( incest,homosexuals ,et.c) and they will remain osctracized from the main stream society,nevertheless they are free to wallow in the dark corners of the society.

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  15. @ernesto

    "so ,what is stopping us from legalizing INCEST e.t.c ????"

    &

    "what if it is agreeble to both the parties??? would you legalise INCEST then?"

    There is nothing in Indian law that makes INCEST illegal, as long as both the partners involved are ADULTs and CONSENTING. If any of the two criteria is missing, then it is crime. Thus giving CONSENT is not enough, the person giving consent must also be ADULT.

    The problem with incest is, it is rarely between two CONSENTING ADULTS. Therefore, in those cases, it becomes sexual abuse of a MINOR and plain RAPE, both of which are, needless to say, punishable under Indian law.

    "i fail to understand what purpose 'homosexual ' carry with them."

    It is true that evolutionary benefit of 'homosexual' behaviour is not well understood and we have just begun to make some headway in that

    direction. It appears that 'homosexual' behaviour does have some evolutionary benefits. It is certainly not 'unnatural'.

    http://www.telegraphindia.com/1090713/jsp/knowhow/story_11225418.jsp

    "It has been clearly proven that offsprings of INCEST relations are born with Genetic disorders . the answer for this is very simple .
    Go against the impeccable rules of mother nature ,pay the price .
    "

    Incestuous behaviour among animals is pretty common. Animals, if I am not mistaken, are part of nature.

    "now you can understand why i termed both Incest and homosexuals relations as UNNATURAL."

    You have actually made non-sequitur arguments.

    "researchers have attributed in breeding (INCEST) to be one of prime reasons for the demise of Roman empire ."

    Any reference will be appreciated

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  16. what's big deal about homosexuality been "unnatural" and "against the religion"

    if people want homosexuality to be illegal as its unnatural and against the religion then please fight for making following things illegal.

    Masturbation as its unnatural and against the religion
    Birth control methods as its unnatural and against the religion
    Bike, cars, computers, industries etc cause all this are man made and unnatural.

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  17. About incest, I hold the view that when it is between consenting adults it is not immoral. But that is not enough to support the view that it should be legalized. Moral views of an issue are only one of the factors in the question of legalization. Legalizations involve considerations of social impact. Incest is rife with a potential for abuse. It is more often than not a case of abuse and incest, going together hand in hand.

    ~ Vinod

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  18. Being secular doesn’t mean bowing down to a religious sentiment. Being secular means protecting an individual from the religious traditions that seem to discriminate people on their sex or sexual orientation.


    Too bad Nehru's grandson didn't do the same when it came to the Shah Bano case. BTW, didn't Nehru bow down to Indian Muslims by excluding them from these "secular" laws regarding marriage? I guess you'll have to indulge in some intellectual dishonesty and pick-and-choose certain facts and push other uncomfortable ones under the carpet to paint Nehru as a champion of secularism. ;)

    -chirkut

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  19. --A modern nation is formed on the basis that an individual’s rights --

    A modern nation is formed on basis of
    individual rights and individual DUTIES as well.

    A modern nation is founded on grounds of greater good of the society.

    The faster the libbies realize, more good it is.

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  20. dear bloggers,
    hi,i m new to the site but after reading it all i could not keep myself from sharing my views either.
    to add on i would like to say that there in no problem in accepting something like homosexuality.i mean they do not ask us to be a part of thheir world or thought process all they are looking for is little support from the obvoius world.there is nothing like going against mother nature or illegality.i guess it has more to do with us and our thoughts.it is we who make things good or bad.society is because of us and we are the ones who have to make it.the whole blog seems to have created a wall around them.why don't we look behind it?
    values and beliefs are created not by literature but by us.we are the ones making it big or no.this is just like not accepting shudras or untouchables.creating differences on the name of religion or sealing a few from our society.do we actually want it?we took decades to open up for women working,decades to see people wearing almost no clothes,decades to expression,to fight for what was ours,decades to open up our economy and god know what all ...
    the question is how much more time do we need just to accept yet human race who are asking nothing out of this world but a right to prove themselves.have a fair and confident foot forward.they are not asking for your religion.they are not asking to change anything.they just want to coexist.

    WHERE LIES THE PROBLEM???

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