Saturday, July 4, 2009

Section 377 and all that

[This is an extended version of an article for the Sunday Pioneer]

In 1965, when the House of Lords debated the proposal to legalise homosexual relations between consenting adults, the legendary Field Marshal Montgomery proposed a curious amendment. Incensed over what he called “this most abominable bestiality”, he argued the age of consent should be raised to 80! At least, he barked, "one has the old age pension to pay for any blackmail."

It is entirely possible that Monty's very ingenuous suggestion—which, predictably, was turned down by his fellow peers—may find takers among Indian MPs and religious figures agitated by the Delhi High Court’s judgment to de-criminalise gay sex between consenting adults over the age of 21.

That the private conduct of two responsible adults should not be the business of the state—unless it jeopardises national security, public peace and public health or constitutes a fraud—has long been recognised as a tenet of personal freedom. Carnal relations involving the same sex may well be against the laws of nature and, therefore, “unnatural”. But there is nothing in the act that corresponds to the common sense definition of criminality. If voluntary gay sex is deemed criminal, the law may as well attach the tag of criminality to adultery—a move that could well result in considerable discomfiture to some of those who are most indignant about the High Court decision.

If the High Court had confined its judgment to merely removing the stigma of criminality attached to queers (oh how this innocent word has been tarred), it would have done its bit to ensure that laws keep pace with changing social mores. Unfortunately, the High Court went a bit over the top. It was bad enough to inject B.R. Ambedkar, Jawaharlal Nehru and the Sonia Gandhi doctrine of inclusiveness into the pantheon of gay rights, what was more ominous was the incorporation of minority sexual habits into the notion of equality.

It is one thing to accommodate gay sexual preferences into a loose framework of individual freedom so that a minusculity is spared needless harassment, it is a different matter to establish a moral equivalence between same sex relationships and man-woman relationships. The judges may not have intended to put them on par but that is the unintended consequence of pitting an arcane clause of the IPC against some of the fundamental rights in the Constitution.

If the contentious part of section 377 violates the Constitution, as the High Court has decided, why was it allowed to remain in the statutes for a full 59 years? Like the classification of communities into “criminal tribes”, why wasn’t it junked earlier? If the inspiration for section 377 was Victorian morality, why wasn’t it re-examined after the passage of the Sexual Offences Act of 1967 in Britain?

The High Court need not have undertaken surgery with general anaesthesia to remove a tiny wart in our laws.

The reason why 377 persisted for so long owed partly to the colonial inheritance. But far more important, it found a place in the statutes because it corresponded to an unspoken social definition of ordinary decencies. This perception has changed over time, just as polygamy and child marriage have been outlawed for most communities, the age of consent raised progressively and the law of primogeniture scrapped. Legal strictures against consensual adult homosexuality had to go because it was perceived as unjust and unfair.

This is not to suggest that homosexuality is now kosher. The fierce opposition to the High Court judgment from all religious groups (a bizarre example of sarva dharma samabhav) indicate that same sex relationships may be tolerated but they have no wider social sanction. The judgment has merely defined gays as a distinct minority group defined by their sexual preferences.

To my mind this is fair. There is absolutely no reason why decent individuals such as the writer Vikram Seth—who has spoken about his gayness with sensitivity—should have the threat of criminality dangling before him for something that is clearly a very private emotion.

No one wants a repetition of the disagreeable witch-hunt of Oscar Wilde in the 21st century and few appreciate the rabid homophobic utterances of President Robert Mugabe of Zimbabwe. Gays have the right to live their life with dignity and without the fear of persecution.

Unfortunately, the High Court judgment has opened the floodgates of what may best be called aggressive gay evangelism. If the experience of the West is anything to go by, it is a matter of time before there are demands—backed by the usual clutch of NGOs and international agencies—to lower the age of consent, accommodate gay marriages within a legal framework and allow the right of adoption to gay couples.

In Britain, for example, the age of consent for voluntary homosexuality was 21 at the time of the Sexual Offences Act of 1967; by 2000, this was lowered to 16 despite the fierces opposition of the House of Lords and the Christian churches; now there are demands for legalising gay marriages and altering the school curricula to show that man-woman relations are not the natural order of society.

Equally insidious, militant gay campaigners have made life impossible for those gays who want to lead private lives without “coming out” and flaunting their sexuality. In 1974, the Gay Liberation Front “outed” E.M. Forster and denounced him as a “downcast gay” for keeping his sexual preferences private.

A perverse in-your-face-gayness has come to define gay activism. Sadly, the media is doing its bit to encourage it.

The invocation of equality and the principles of non-discrimination are a double-edged sword. What may begin as an innocent gesture of accommodation and tolerance has the potential to spin out of control. The gesture of de-criminalising homosexuality—which is different from endorsing it—has to be accompanied by a robust assertion of the state and society’s commitment to family values.

Unless, of course, we see the recognition of gay rights as a precursor to a gender-neutral, non-denominational, secular, uniform civil code—just as the Constitution-makers desired. It may be worth floating the suggestion. It is guaranteed to elicit the same response as Monty's bluster.

The Delhi Court judgment said that faith-driven morality had no place in law. "In our scheme of things, Constitutional morality must outweigh the arguments of public morality, even if it be the majoritarian view." Will the judiciary try and put this principle into practice?

Remember Shah Bano?

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