Homosexuals are as normal as ‘you’ and ‘me’. Yet, just because they love ‘their own kind’, they are ostracized and hounded by the law. And branded as ‘queers’ and ‘aberrations’ – precisely what they are not./
Homosexuals are normal humans attracted to their own gender. Homosexuality (rarely Homophilia) is a sexual orientation or orientations characterized by romantic or sexual desire for, or sexual attraction towards member of the same sex. The term usually implies an exclusive or predominant sexual orientation toward persons of the same sex and is distinguished from bisexuality as well as heterosexuality. In addition to referring to a sexual orientation, the term homosexuality is also used for sexual behavior between people of the same sex.
In women, romantic or sexual desire for other women is also called ‘lesbianism’. The term ‘gay’ is used to refer to homosexual persons of either gender, although it is mostly used to refer to males. Persons with the sexual orientation of homosexuality are sometimes called homosexuals. Many people regard the term ‘homosexual’ as derogatory or clinical because of its cold, antiseptic connotation, particularly when applied to a person, and most people who regard themselves as having a homosexual orientation prefer the term gay, lesbian, or, less frequently, queer or same-gender loving.
Like heterosexuality, homosexuality is an orientation, which is not unnatural. Society is changing and accepts this orientation – what is not changing is the legal mindset in India.
Section 377 of the Indian Penal Code, was enacted by the British in 1860. Ironically, while the British drafted this section while replacing a tolerant Indian attitude towards sexuality with an oppressive one, this law was repealed in United Kingdom in 1967. this section criminalizes what it calls, ‘sexual offences against the order of nature’. It does not in any place define what constitutes the order of nature, but the judicial pronouncements that have come over the past one and half century has extended the application of this section to all forms of sexual expressions that is possible between two male persons. Every time the law or the authorities have come across instances of lesbianism, there has been a thus far unsuccessful attempt to apply this law to them as well. Homosexuality in India stands criminalized because of a mid 19th century colonial law.
Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation – Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
Very few cases on this law have actually reached the upper courts level in all this time, but the law continues to be a potent tool of oppression. It provides the impunity to a venal police to extort money, blackmail, indulge in violence, and extract other favors, including sexual favors, by dangling this law on homosexual males and females, a traditional social group of transvestites and transsexual persons. It impedes sexual health promotion activities like HIV/AIDS Interventions amongst same sex attracted males. It discourages reporting of male rape, and therefore encourages such rape, often by police. In sum, it disrupts the social existence of all same sex attracted persons, erodes their dignity and self respect, and reduces them to a sub-human level of existence.
[a] the state has not just a function to, but actually a duty to stop ‘unnatural sex’, or else the social order would break down, law loose its legitimacy et al;
[b] that our society does not tolerate homosexuality, and notwithstanding the universality of human rights or the universal applicability of our fundamental rights and freedoms, its criminalization is therefore justified; and
[c] that it is really not our thing, its something that happens out there in the west, we do not have to copy that. In other words the three pillars of the classic culture arguments to criminalize the likes of us.
So why is that problematic? Of course we know that the Government does not have any locus standi to interfere in the private sexual activity of two consenting adults, regardless of its interpretation of what is natural or unnatural sexual behavior. Its problematic because the repeated insistence of the culture argument has the risk of putting in jeopardy the gains that the women’s rights movement, or the movement for the upliftment of the dalits and other oppressed castes, the civil rights movement, the social gains that has been made over years of struggle in the seeking of a multicultural tolerant society, the gains in the stride for secularism etc. All of these movements have been conducted in opposition to some or the other prevailing majoritarian belief system and we stand to loose all of those gains. And it is a price that I personally do not think is worth paying.
It also stands the risk of actually pushing the Indian polity and the Indian society into a increasingly fascist mode, where there is only one belief that is accepted and culturally acceptable, therefore legally sanctioned, and anything that goes against it has to be suppressed, criminalized, and obliterated. All justified in the name of culture. It would ring in the breakdown of our cherished pluralistic and tolerant society.
The universality of Human rights demands that prevailing and dominant cultural and social norms cannot be invoked in a manner as to circumvent or restrain fundamental and constitutional rights. If we were to accept the government’s arguments, then many of the progressive legislations in my country would never have been enacted. For example, even today there are many men who think that tradition gives them a right to beat up their wives, or that they deserve to get a very fat dowry just because they were born with a penis. If we give in to these cultural beliefs, then there is nothing to turn round the legislations that we have made to stop violence against women or dowry and dowry related deaths.
My reading is that when the government says that it needs to retain section 377 because it is also used against cases of child abuse and is therefore necessary, it only shows how bankruptcy they are. In spite of repeated struggles and demands by women’s organizations and child rights organization, not to speak of GLBT organizations that are increasingly raising the same demand, India remains one of the few countries that does not have a comprehensive law against child sexual abuse till date, or a law against male rape. One fails to understand what prevents the Government from enacting such a law, when it has internationally made the commitment to enact such legislation long ago.