The Gay Debate

Romeo Naorem *

The landmark verdict of the Delhi high court on 2nd July that legalizes the same-sex relationship between consenting adults was received with a mixed response.

The LGBTI (Lesbian, Gay, Bisexual, Transgender, and Intersexual) community, gay right activists and their silent supporters have every reason to celebrate, as it has been a long, tumultuous and torturous wait since 2001, when Naz Foundation, an NGO fighting for gay rights, filed a Public Interest Litigation seeking legalization of gay sex among consenting adults.

Many of them hugged, kissed, and patted each other in ecstasy, amidst tears of joy rolling down their cheeks, on hearing the landmark verdict of the Delhi high court that legalizes homosexual relationship between consenting adults.

On the other hand, certain sections of the society, the religious and the clerics in particular, came out strongly against the judgment, disapproving the verdict that legalizes gay sex among consenting adults. The gay brigade welcomes it as a path-breaking judgment that decriminalizes homosexuality, thereby proving that the law making it a criminal offence violates their fundamental rights.

But the moral and religious contingents are already on the warpath, taking the case to the highest court of justice. The warring sides have upped their ante; the war of words, bytes, tweets and blogs have already begun. Their target: Section 377.

Section 377 is an archaic Victorian law introduced in the Indian Penal Code, by Lord Macaulay 149 years ago to punish carnal intercourse, holding it was against nature. It says, "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."

The main argument for abolishing Section 377 centers around misuse of the law by the authority (read police). Most of the time consenting homosexuals, when arrested, are charged on grounds of public indecency and not under the provision of the aforesaid law; in fact, the law is hardly ever used. But the gay community is at the mercy of the police with regular threats, harassment and blackmails as long as the law remains on the statute books.

Many religious scholars and conservative clerics are of the opinion that homosexuality is against human nature (the term they generally use: abnormal behavior), and hence a sinful act. They strongly condemn the verdict and have even organized an all religion press conference, where they flayed and lambasted the judgment, calling it a danger to Indian culture and ethos. Still, the moderates among them do advocate that, though homosexuality is immoral, they are in favor of de-criminalising homosexuality.

Maulana Khalid Rashid Firangi Mahli, member of the All India Muslim Personal Law Board said, "It is against all religions. It is against the culture of Indian society. We feel there is no need to legalise homosexuality. This practice is unnatural. It should continue as a criminal act."

However, according to Asghar Ali Engineer, an Islamic scholar, ''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.''

In a recent newspaper article, Father Dominic Emmanuel, Spokesperson of the Delhi Catholic Archdiocese, wrote ''It needs to be made clear that the Christian community does not (repeat it does not) treat people with homosexual tendencies as criminals. Nor does it believe that they can be regarded on par with criminals. Therefore, the church has no serious objection to the repealing of Section 377. The Vatican's stand on this is quite clear: Every sign of unjust discrimination in their regard should be avoided.''

Another line of argument against homosexuality is aptly put by Father Dominic as, "It is against nature. Our position is that homosexuality should not be legalized. Such practice will increase paedophilia and HIV/AIDS too."

But as things stand, paedophilia is committed most of the time by heterosexuals, rather than homosexuals, and as far as the HIV/AIDS angle is concerned, the more homosexuals are pushed to the wall with obsolete laws like Section 377, they will be forced to lie and hide under cloaks of secrecy, making them more vulnerable to the virus.

To further the debate, why not frame more stringent laws against paedophilia? There is no evidence to suggest that Section 377 has proved successful in containing the spread and occurrence of paedophillia. And MSM is just one among the myriad ways of spreading HIV/AIDS, and as a matter of fact, there are many more effective ways of combating the spread of the virus than preventing consensual homosexuality.

When the debate enters the realm of religion, the religious scholars and gurus wax eloquent with elegant homilies and thought provoking philosophies that vilify homosexuality as an abnormal behavior that can malign and pose a grave threat to our religion, culture and ethos. Yet again, the gay activists too would quote from the same religious books to counter their arguments point by point.

Following the debate(in all the domains of the media) closely, one can clearly see that those who are for the scrapping of Section 377 has logic, common sense and sound judgment, while those against it have more of prejudice( bigotry might not be too strong a word), and, at best, a wee bit of religious injunction and cultural sanction.

With overwhelming evidences and intractable arguments in favour of doing away with the obsolete law, let the debate rest. Section 377 needs to be scrapped. Religion and law should occupy the domain, cut out for them, and not infringe and impinge on spaces not meant for them.

Religion is a very personal thing. Everyone has the right to choose and follow a religion of his own liking. No pandit, no priest, no maulvi has the authority to dictate, the way one lives, against his wishes. It is time the clerics know that their writ extends only to those who choose to listen to them. What one does inside his bedroom is his business and solely his. After all we are citizens of a secular country, not a theocracy. Period.

In our country, religion has no place in the legislature; therefore, it would be awfully wrong for religious bodies to demand for legislation according to their religion. It would be good for them to confine to their sanctum sanctorum at the temple, church or the mosque. Stop the moral policing. Let the police do the policing, and let's leave the lawmakers to do their job, for once.

Laws are meant to safeguard and protect its citizen, not harass them. Criminal laws are framed to punish and fight crimes like murder, robbery, cheating, assault, frauds and the likes, but ironically, a law like Section 377 infringes on the fundamental right of the LGBTI community and harasses them. It makes them criminal despite their committing no crime.

Laws shouldn't intrude into our private lives, save in cases like divorce, child custody or division of assets. Other than that, our private life is out of bounds of the law. As with religion, what goes on in the bedroom is off limits for the law. Simply put, (concerning matters of the personal life), laws are enacted to ensure us freedom and liberty, and to safeguard us from murders, threats, assaults etc.

Homosexuality existed before Section 377 was endorsed in the Indian Penal Code; it still exists and will continue to. And history is witness to the fact that homosexuality had never been a cause for catastrophe, or a reason for war; as a matter of fact, nature had never unleashed its fury for (homosexuals) going against the way of nature.

The queer community, as the homosexuals are generally addressed as, has had enough – be it the way their queerness is being stereotyped in movies (they call it comic relief??) or being forcefully criminalized by law.

They face harassment, blackmails and threats from the police on a regular basis; they are bullied everywhere, rejected by family, friends and society, pronounced abnormal and sinners by religious leaders. Let's give them their due, their lost dignity, their right to freedom and liberty.

In a liberal secular society, criminalizing and dehumanizing a minority, just because they behave differently from the majority don't hold much water; it goes against the fundamental (basis) of our tolerant democracy.