Section 377 of the Indian Penal Code states, "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..." The same law is on the books in Singapore, Sri Lanka and Pakistan, and has been interpreted differently in each of those nations.
In India, section 377 is used by the police to convict pedophiles and harass males interested in sex with fellow men. An activist group, the Naz Foundation, has filed suit in Delhi asking for the law to be read down so it no longer applies to voluntary intercourse between adults. As the time for a verdict draws closer, different arms of the government are speaking in contradictory voices. The first to break ranks and favour decriminalising gay sex was the former Health Minister Anbumani Ramadoss His successor, Ghulam Nabi Azad, has been more circumspect. The law ministry had earlier backed the status quo, but the new man in charge, Veerappa Moily, gladdened liberal hearts by signalling a shift in position.
Moily has since backtracked. He now says his comments were misinterpreted, and that a decision will be taken only after consulting with religious groups. This is a ridiculous idea. The head of the Darul Uloom is hardly likely to emerge from such a consultation saying, "Homosexuals behave in accord with the Quran and Hadith and, besides, the ones I know are seriously cool dudes". The Shankaracharya of Puri is not about to preside over gay wedding ceremonies in his temple. The stance of religious groups is well known, and is broadly against any repeal or watering down of Section 377.
Why should the opinion of these luminaries count outside their sphere of influence? The Pope, who considers homosexuality a cardinal sin, also believes condoms ought to play no part in contraception and AIDS prevention. This hasn't stopped the Indian government from encouraging condom use, and producing zillions of rubbers in state factories. India didn't consult with Pentecostals before legalising abortion. We didn't do so because we are a secular republic. The law minister appears not to have read the constitution recently.
OK, so gay sex is haram. But so is eating pig and drinking alcohol, and I can enjoy both those things legally pretty much anywhere in India. We have laws against caste discrimination, against dowry, against child marriage, all of which were pushed through despite opposition from conservative Hindu circles. Religions may bless marriages between geriatric men and pre-pubescent girls while frowning of the love or lust between adult males, but liberal society thinks in exactly the opposite way and so should the state.
It is time India reclaimed its status as a liberal republic committed to progressive ideals. It's bad enough that my hometown appears to be ruled by an elephant-headed god and a seventeenth century monarch.
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9 comments:
Well, the article did say "consulting with all sections of society, including religious groups." Now I am a mildly militant atheist, and would like to see religion being eradicated. Still I would suppose that culture or society, and not religion, is the chief obstacle to gay rights in India. I base this entirely on the attitudes of friends and family members, who are otherwise very liberal. I wonder if there is any evidence for or against this.
Politicians often speak of consulting 'all sections of society' without ever explaining how this objective can be achieved. We have a parliament precisely so that all sections of society find representation. Members of parliament are public trustees because it is impossible to consult with the public at large on every issue.
In practice, the people getting involved in the gay rights debate are members of religious groups, or political parties allied to religious groups. These people are great at stirring up emotions by feeding their constituents half truths; it's a mistake to provide them with a platform.
Unlike you, I have no desire to see religion eradicated. I just want what our constitution promises: a separation of secular and religious authority. That separation was adhered to when abortion was legalised, and ought to be respected in this case as well.
hey interesting article. In a path breaking judgement, the Delhi High Court on Thursday legalized gay sex among consenting adults holding that the law making it a criminal offence violates fundamental rights..well now dats a huge step forward..
Thanks, Always. I agree about path breaking. It's an incredible day for human rights in India. Now we wait to see if the government decides to appeal, or shuffles across to the right side of history.
Modern society has to move on and understand that societal norms evolve over a period of time and it is quite stupid and may I say futile to stay within a protective self contained womb. Destroying old constructs are as important to progress as creating new ones. The old ones serve as display to what was much like an old fort which that has no strategic or utilitarian value today. Religious bigots who refer to cultural heritage may do well to read this interesting article posted by Devdutt on the issue. http://devdutt.com/did-homosexuality-exist-in-ancient-india
Religion and politics have always made for an interesting volatile cocktail. While it is difficult to separate the two I believe that good politics should know when to move on and when constitution must lead / oppose popular belief. After all to my mind, democracy isn’t a large part of our cultural heritage as well.
What if we can't trust government to do the right thing? What if areligious liberals are not represented in parliament? That could happen, elections aren't perfect. Isn't there a role to be filled here by an extra-governmental liberal organisation that could influence policy? Then how can we deny the same role to religious organisations? And that question is only partly rhetorical...
Well, a secular governmental must make specific efforts to steer clear of religious influences. The same rule does not apply to its interactions with non-religious liberal groups.
Democracy is, of course, about much more than elections, as we learned again today thanks to the Delhi High Court.
Girish
Doesnt that also mean that husbands and wives who indulge in anal or oral intercourse "against the order of nature" should also be locked away for 10 years, like the old sodomy statutes in the Deep South. Inforcing the law only against gay men would seem to be in contravention of the doctrines of equal treatment under the law elsewhere enshrined in the Indian Penal Code. Opponents could use this as a stick to beat them with. Either enforces the law equally or admit that the law is inchoherent.
Adrian, since the police here (thankfully) don't barge into bedrooms, it would be difficult for them to charge married couples in the manner you suggest. But you're right, the law certainly includes a proscription of male-female oral and anal sex. In Singapore, the same statute was used mainly against men who had oral or penetrative sex with 16 or 17 year old girls and were somehow found out.
The great news is that section 377 has been struck down by the Delhi high court in a long, carefully reasoned judgment.
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