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 clichés 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.