The Hindu Business Line : Co-operation for wrong cause

Isn’t it a tragedy that for brick and mortar structures we are willing to shed blood in a violent celebration of our differences, but when it comes to denying the least of space to people who are a little different from the majority, we call for “constructive cooperation,” asks RASHEEDA BHAGAT.

The alacrity with which leaders from all religious groups — Muslims, Christians and Hindus — have come together to ring alarm bells over the Delhi High Court judgement decriminalising consensual sex among gay adults in a private environment, is shocking. Particularly because, over the last few decades, we have become a nation where religious beliefs have only triggered polarisation, violence and hatred.

But this verdict had the entirely opposite effect of fundamentalists from different religions coming together to flay the courts and express apprehension, in shrill voices, that giving homosexuals such freedom will corrupt our moral fibre and destroy Indian culture.

On July 2 the Court gave relief to the long-pending demand of homosexual organisations that the archaic provisions of Section 377 of the Indian Penal Code that criminalised consensual sex between homosexual adults in private was violative of the freedom of rights guaranteed to individuals under the Article 21 (Right to Protection of Life and Personal Liberty) of the Constitution.

The provision dated back to the British era of 1860 and the court struck it down. But the Court has made it clear that Section 377 has not been struck down in its entirety and will continue to govern non-consensual sex with minors to protect children against paedophiles.

Interestingly, Britain itself did away with the criminalisation of homosexual relationship between consenting adults way back in 1967. As eminent jurist Soli Sorabjee pointed out in a recent signed article hailing this “landmark judgement” of the Delhi High Court, homosexuality has been decriminalised in several countries of Asia, Africa and South America.

A beginning

In 2003, the US Supreme Court also ruled criminalisation of homosexuality between consenting adults unconstitutional and violative of fundamental rights of liberty and privacy. To quote Mr Sorabjee: “Courts in other jurisdictions namely, Canada, Australia, South Africa, Fiji and Nepal, as also the European Court of Human Rights in Strasbourg, have invalidated laws criminalising sexual intercourse between same sex adults.

Despite the above trend and the 172nd Report of our Law Commission submitted in 2000 favouring abolition of Section 377 this monstrous provision continued to remain on the statute.”

As expected, gay, lesbian and HIV/AIDS rights groups in India have welcomed the judgement. Ms Anjali Gopalan, director of Naz Foundation, which works for HIV/AIDS afflicted and had filed the petition in 2002 to declare this Section unconstitutional, said: “The judgement is fantastic; it’s a big step forward, but there are many more steps ahead.” The Foundation had contended that Section 377 violates a citizen’s fundamental rights and promotes illegal sex. It "demeans” and “discriminates” against gay people.

As is seen in our country quite often, the Central government had taken a contradictory stand on the issue. In its reply to the petition, the Home Ministry affidavit said: “Indian society strongly disapproves of homosexuality and disapproval is strong enough to justify it being treated as a criminal offence, even where consenting adults indulge in it in private… Deletion of the Section can open floodgates of delinquent behaviour and be misconstrued as providing unbridled licence for homosexual acts.”

But the Health Ministry had a different point of view and, in its affidavit, the National Aids Control Organisation (NACO), which comes under the Health Ministry, had said: “Men having sex with men (MSM) are mostly reluctant to reveal same-sex behaviour due to fear of law enforcing agencies, pushing the infection underground and making it difficult to access them.” Enforcement of Section 377 would only push HIV-infected underground.

“Immoral, unnatural”

Expectedly, there is a huge furore around the country from not only religious leaders but even those who have always frowned on gay/lesbian relationships, dubbing it “immoral, and unnatural”. What is amusing is the good old Indian resort to our “glorious ancient tradition and culture” to decry this small step in granting people the freedom to choose their sexual orientation.

That the scriptures of the three main religions have references to homosexuality in some form of the other and that some prescribe severe punishment for such behaviour proves that India was not a stranger to homosexuality.

Our hypocrisy is evident in our willingness to look the other way and sweep anything that offends our sense of morality under the carpet, pretending all is well. But the moment it is pulled out of the closet and threatens to come out into the public domain we are outraged!

One or two TV debates I watched on the Delhi High Court judgement had on the panel yoga guru Baba Ramdev, and the Vishwa Hindu Parishad’s V. P. Singhal, who had opposed the original petition on the grounds of Indian tradition and morality, and sexologist Dr Kothari.

As both Baba Ramdev and Dr Singhal opposed the Delhi High Court judgement in an outburst of temper, screaming at the anchor and the two other panelists who maintained that it was, after all, a question of personal choice and freedom, the anchor of the Hindi news channel broadcasting the programme, decided to outmatch their lung power. Baba Ramdev wondered how parents would explain sex between two men or two women to their children, and said: “Sharm aani chahiye aisi baat kartey huey (we should be ashamed to even talk about it)”. Dr Singhal was appalled at the “murder of Indian tradition and culture” that was taking place.

Neither was willing to even hear out Dr Kothari’s plea that they should look at this issue as something that had always existed and try to analyse how, if such men and women were forced into traditional marriage, it would ruin the lives of everybody involved… the heterosexual as also the homosexual. Muslim religious leaders have made matching noises in opposing the Delhi High Court move.

Mr Kamal Sherwani, Chairman, All India Muslim Forum, was astonished that some Muslim ulema had opposed the judgement saying it went against Quranic teaching. Flaying them for their “myopic view” in limiting it to one religion, he said: “It is a national offence, it is a crime against humanity. In the West it has been legalised, but it is against their basic cultural ethos, and religious scripts. The Church has always condemned it in totally unequivocal language. In India it is not the question of Hindu, Muslim, Christian, Sikh or Parsi culture, but it is the question of the magnificent structure of the grand edifice of our sacred ancient heritage, which we must not allow to be spoiled by ‘gays’ and ‘lesbians’.”

Long road ahead

For the homosexual community in India, which is considerably large but cannot be gauged as it continues to remain in the closet, the judgment is but a small step. All it gives them at the present is a mere bread crumb; no longer will corrupt policemen be able to threaten them or exhort money on this issue. In the larger Indian community, moral stigma and public disapproval continue to be attached to homosexual relationships which are looked upon as immoral and unnatural. Legalisation of homosexual relationships through gay or lesbian marriages is not even on the horizon.

Mr Sherwani has appealed to all religions to do away with “our destructive opposition” and come together “in constructive cooperation, for the sake of our heritage, our children, our womanhood, and above all for the sake of those distinctive spiritual values for which India is still known as fountainhead world over. With our collective strength, we must show to these happy ‘gays’ and ‘lesbians’ that Indian culture is not meant for them.”

Isn’t it a tragedy that for brick and mortar structures we are willing to shed blood in a violent celebration of our differences, but when it comes to denying the least of space to people who are a little different from the majority, we are willing to get into “constructive cooperation”?

(Response may be sent to rasheeda@thehindu.co.in and blfeedback@thehindu.co.in.)

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