In the late Seventies, Tom Robinson, the gay rock
singer, would introduce his bitter-sweet Glad to
be Gay with the words, "This is a medical song.
It is about a disease. Or at least it is about
something that the World Health Organisation
regards as a diseaseŠ"
That was then. In 1981, the WHO realised how
foolish it was to regard homosexuality as a
disease and most Western countries stopped
persecuting gay people. Homosexual acts between
consenting adults were legalised in Britain as
early as the Sixties and by the end of the
Eighties, it was entirely acceptable for leading
politicians to come out and declare that they
were gay. Even film stars no longer found it
necessary to pretend to be heterosexual and open
declarations of homosexuality did no damage to
the careers of such actors as Ian McKellen and
Rupert Everett. Nor did it hurt such romantic
leading men as Tom Hanks and Antonio Banderas to
play gay characters in their movies.
How strange then to find that homosexuality
remains a crime in India. Consenting adults
caught engaging in homosexual acts can be sent to
jail. Politicians routinely denounce gay
behaviour as a hideous aberration. And the focus
of our anti-Aids campaign is heterosexual sex
even though there is a considerable body of
evidence to suggest that homosexuals are among
those most at risk. (By the way, even though the
WHO no longer lists homosexuality as a disease,
the Indian Psychiatric Association continues to
do so. Think of that and consider it a measure of
the sophistication of the profession of
psychiatry in India if you ever need to consult a
shrink.)
Much is being made of the origin of the law
against homosexuality. It dates back to 1861 and
incorporates Victorian prejudices against gay
people. Given that even Britain has abandoned
Queen Victoria’s prejudices, why should we in
India remain slaves to a colonial mindset? Why
should we preserve this unpleasant legacy of the
Raj a century and a half after the law was
originally passed?
But my objections to the law go beyond its Empire
origins. One of the founding principles of the
Indian State has been that we ensure justice and
fairness to all minorities. Thus, scheduled
castes will find jobs and university places
reserved for them. Seats in panchayats will be
reserved on a gender basis so that women get a
fairer deal. Political parties will make some
attempt to reassure religious minorities that
their personal laws will be preserved by the
Indian State. And now, there is an increasing
emphasis on measures that will benefit senior
citizens: cheap fares, tax breaks, higher
interest rates, etc.
But homosexuals are exempt from all special
consideration. As far as the law is concerned,
they are not a minority. They are criminals.
And why are they criminals? What justification
can there possibly be for a law that criminalises
homosexual acts? No legal scholar I have spoken
to has been able to provide any kind of
justification for this provision.
The basis of all law is that it punishes acts
that harm other people. So, if I rob you or
assault you or cheat you, then I am clearly in
breach of the law and should be punished. But
there is no evidence that homosexual acts between
consenting adults harm anybody. Both parties have
provided consent, and both are adult enough to
decide what behaviour is appropriate to their
lifestyles.
So how can you justify legislating against such
acts? How can you possibly justify turning
otherwise law-abiding citizens into criminals
purely on the basis of their personal choices -
choices that hurt nobody?
Because there is no effective rebuttal to this
argument, supporters of Section 377 of the Indian
Penal Code, which criminalises homosexuality,
fall back on a variety of bogus justifications.
Most popular is the paedophilia argument: if
homosexuality is legalised, then dirty old men
will rape children. This is nonsense. There are
several laws already in existence to protect
children and to guard against all kinds of rape.
And, in any case, most instances of paedophilia
in India involve heterosexual sex. If this is an
argument for anything, it is an argument for
banning heterosexuality.
Then there is the society-is-not-ready argument.
This states that India is a deeply conservative
society and harmless law-abiding heterosexuals
will be deeply offended by the knowledge that
somewhere, two consenting adults are performing
homosexual acts in private. I don’t think this
even needs a rebuttal. The truth is that
homosexuals exist anyway and regardless of what
the IPC says, they do have sex. As far as I can
see, this has done no damage to Indian society.
And the overturning of Section 377 does not
affect the usual laws about public indecency: it
does not mean that homosexuals will make love in
the centre of Connaught Place or Kala Ghoda.
And, finally, there is the what-does-it-matter
argument. The law against homosexuality is not
rigorously enforced. We all know homosexuals who
are clearly not celibate. And yet, nobody puts
them in jail. So, even if there is a Raj-era law
on the statute books, why make such a fuss about
it?
The problem with this argument is that it
actually works against Section 377. If there is
no justification for a law and it is not enforced
anyway, then what reason is there for keeping it
as part of the Indian Penal Code? Surely, it is
much easier to simply abolish it.
But, of course, it does matter. If I were a
homosexual, I would find it deeply offensive and
an affront to my human rights that my romantic
and sexual choices were considered illegal by the
Indian State and that each time I had sex with my
partner, I was breaking the law. Under Section
377, I would turn into a criminal every night. It
would be no consolation for me to know that even
though the police had a perfect right to lock me
up, they had decided not to bother.
And, as Amartya Sen points out in his statement
which we reproduce on the Op-ed page today,
"Whenever any behaviour is identified as a
penalisable crime it gives the police and other
law enforcement officers huge power to harass and
victimise some people. The harm done by an unjust
law like this can, therefore, be far larger than
would be indicated by cases of actual
prosecution."
I am one of the signatories to the open letter
sent by Vikram Seth and many other concerned
citizens (also reproduced on the Op-ed page)
addressed to the government, the judiciary and to
Indians everywhere demanding the overturning of
Section 377.
I know that there will be a tendency to treat us
as bleeding-heart liberals and to argue that
India has many greater priorities. But I do not
believe that a law that turns at least 50 million
otherwise law-abiding Indians into criminals can
be a low priority. As long as Section 377 exists,
as long as we fall back on the colonial law book
to discriminate against our own citizens and as
long as we deny a fundamental human right to a
large section of our people, we lower ourselves
as a nation. And we lose the right to be
considered a liberal society where all men and
women are equal.