By Apoorv Pathak:
In the past few months, we have been fiercely debating about the perception of growing intolerance in the society. While any debate which makes the public more conscious of the lurking dangers to our liberties, rights and harmony, is always welcome, I do have an issue with the way intolerance towards homosexuals is never discussed. How can any debate on tolerance ever miss one of the biggest institutionalised intolerance in our nation – the legally backed intolerance towards homosexuals?
Section 377 (which bans “unnatural sex”) forms the bedrock of this legal intolerance of homosexuals. It’s an anachronistic law which goes against the ethos that the Indian Republic seeks to ensure for its citizens. The law is a shame that we must efface for the following reasons:
Dignity of an individual is the most basic right that a liberal democracy ensures for its citizens. But by criminalising the act of homosexuality, the law deprives homosexuals of the right to be who they are. What can be a worse assault on the dignity of individual than the criminalisation of their very own individuality? Equality is another core ethos that the Indian democracy tries to promote. But if a significant minority – homosexuals – are so brutally discriminated against, to the extent of outlawing them, how can this quest for equality be realised?
The law places an unreasonable burden on homosexuals. So, they are the violators of the law. This creates opportunities for the law enforcers on the ground to oppress these helpless people. Homosexuals are made to shell out hefty bribes, face police brutality, blackmailing and live in eternal fear of being harassed by any sadistic Tom, Dick and Harry who wishes to have fun at their cost.
Since the law of the land outlaws them and makes their sexual identity illegal, they are forced to silently bear this oppression. How can any just nation create conditions for such naked injustice and oppression to take place?
Liberal democracy is not a government where two wolves and a lamb sit together to decide what to have for dinner. Protection of rights and interests of minorities is an essential requisite in a liberal democracy. But in our treatment of homosexuals who constitute a minority with regard to their sexual behaviour, the nation is far from protecting their interests, illegalising their core nature. Such persistent daily and legalised oppression of this minority, is one of the worst examples of majoritarian tyranny.
The Indian State suffers from severe under-capacity to fulfil its legal responsibilities. Yet this lack of capacity hasn’t stopped the State from undertaking unnecessary roles.
Why should it be the government’s business what someone does in his/her bedroom? This intrusion into people’s personal lives diverts state capacity from its core functions leading to under-performance. So if Indian police are busy looking for homosexuals, obviously they will have lesser resources to prevent crime and maintain law and order.
It is this realisation which leads to a large number of people backing Narendra Modi on his promise of minimum government maximum governance. As the law on Section 377 is such a clear case of the opposite practice – maximum government minimum governance, Modi should waste no time in scrapping it.
At its core, Section 377 is a classic case of misguided moral policing. When the law promotes moral policing, it gives a powerful boost to all other elements in society who are tempted to impose their morals on others. A policeman addicted to harassing homosexuals is also likely to harass couples. Even vigilante groups will be more interested in harassing homosexuals, rather than harassing those going to pubs and bars, those wearing clothes not ‘approved’ by our ‘Indian’ culture or those in relationships not acceptable to these groups.
Since we have become so conscious of our global image, we must realise that internal criticism which is scoffed at, has the potential to undermine India’s image, we can well do away with this law. It puts India in the bad company of despots and illiberal regimes in the world. This law, much more than any criticism by free citizens, harms India’s image abroad and this is one more reason why we should do away with it. Sooner the better.
The law seeks to paint certain sex as unnatural. This classification of some sex as unnatural is deeply irrational. From time immemorial, humans, as well as different species of animals, have engaged in homosexual sex. The natural world is replete with acts of homosexual sex. Even modern science recognises homosexuality as a natural behaviour that is an essential trait in some individuals. So if both science and examples from natural world prove that the act is natural, isn’t the law unnatural to be guided by prejudice rather than any sound logic or fact?
Ironically, those who defend Section 377 in the name of defending Indian culture are relying on a Victorian era vintage law that India imported from our colonial masters. Indian tradition, on the other hand, has for long depicted and celebrated homosexuality, be it in Khajuraho or in the famous Kamasutra. Thus, defending Section 377 in the name of Indian culture is a plain travesty of facts. And the West from where we borrowed the Act has long discarded it, we too will be better off by doing away with it.
Section 377 is a misguided, anachronistic, immoral, dangerous law that weighs heavy on India’s conscience. India’s claim of being a liberal democracy can never be fully true as long as such an illiberal law remains in force. Millions of people suffer due to its existence. A new and just India must rise together against such a law. Let us all join our voices together to force the system to do away with it and also migrate the effect of persistent discrimination through affirmative action. And let our usual famed impatience be positively deployed in this struggle, for the more we delay, the heavier will the guilt grow on our collective conscience.