Dignity consists in freedom and non-discrimination! So it seems in the light of arguments unleashed for and against maintaining Section 377 of Indian Penal Code. But then, in all fairness Human Dignity should consist in vesting the social being with a character commensurate with its human origin that distinguishes one from the bestial nature. For, dignity, in the real sense, cannot be the one that debases humanness. But the LGBTQI community is not off the mark in clamoring for dignity. For, miniscule as they may be at 2.5 million out of a population of a billion and quarter, they stand discriminated vis-à-vis Heterosexuals. For, their right to Liberal Sex practices stands legally upheld on the sheer premise of the subjective and self-centered principle of consensus. It is therefore contended that the Judiciary has given into social prejudice and made a restrictive law.
The other part is of course that this law has been cruelly exploited to heap untold indignities (such as police harassments) on the LGBTQI community. This composite view indeed has been shared by many a high profile personality beginning from the god-man, Sri Sri Ravishankar, Amartya Sen, politicians like Sonia Gandhi, Shashi Tharoor, lawyers like Kapil Sibal, Gay organizations such as Naz Foundation, Bedbhav Virodhi Andolan, LGBT Rights Association…etc., a host of film personalities and others. And not to forget, even the official Hindutva adhering NDA position also seems to have veered round this view. Says Kapil Sibal, “penalizing expression of Consensual sexuality in private is unconstitutional” and further, criticizing the Supreme Court for overturning the 2009 Delhi High Court‟s verdict, cautions, “If not corrected now, your verdicts may result in „immense public injury‟”. (“It‟s No Mental Disorder: Petitioners”, Krishnadas Rajgopal, The Hindu, February 03, 2016) This cannot be otherwise, if Section 377 is viewed from the perspective of legally upheld Consensuality restricted to heterosexual practices legitimized on the grounds of perceived normality and naturality.
Indeed, the learned Delhi High Court judges, Chief Justice Ajit Prakash Sha and Justice S. Muralidhar, overturning, on the 2nd July, 2009, section 377 had significantly observed. “It cannot be forgotten that discrimination is antithesis of equality which will foster the dignity of every individual.” (“Section 377 of the Indian Penal Code”, Wikipedia). It is obvious that the learned judges were declaring portions of Section 377 unconstitutional with reference to the Law on Consensual Sex among adults. But why did such a straight-forward judicial position escape the attention of the judiciary for so long (if it is the case that de-colonized India was following the Victorian Law of 1860 or its reenacted version till the Delhi High Court judges abrogated Section 377 in 2009)? How do we explain reticence of the legal luminaries, even as recently as December 2013 when the Supreme Court rejected Delhi High Court‟s amendment?
Thus, if it is the case that Indian laws are inspired by the Victorian laws of 1860, it is plain that the judiciary while enacting these laws had before it the British model of sexuality not the Indian concept! If that were not so, they would have understood that the very concept of consensual sex or uncontrolled sexual practice is anathema to Indian way of living. Indian ethos has always upheld marital sex. For, entire family structure and moral conduct crucially depended upon the manner in which this urge is dealt with. It was also perhaps believed that, when woman is corrupt the whole family is corrupt, just as we do now in relation to education (when a woman is educated the entire family is educated). Indeed, the seemingly draconian restrictions placed on woman could be explained on this count and on the protectionist premise of woman‟s socio-physical vulnerability.
In other words, India’s civilizational thrust has been infusing a strong moral character that would both maintain social order as well as defend against its abuses. Thus any law, any reform should not lose sight of this core Indian value. If it does, such reform, such law simply works to destroy basic structure of India’s cultural heritage. Mr. Kapil Sibal and others should therefore understand that the “ immense public injury” caused by maintaining and extending the laws on liberal sex, on the sheer premise of mutual consensus, is one of crumbling societal values and uprooting basic moral character (that extends to whole gamut of social life) of people. After all, creating conditions for sexual voracity would only lead to reducing men and women into sex-objects affecting even healthy social and familial relationships.
Regrettably, our legal luminaries have taken the individual, not the family (much less the society) as unit. This is so because they took a very extraneous view of the whole issue. They considered the act per se in isolation, detaching it from the whole gamut of relations it is susceptible to influence. In short, they had completely set aside its socio-ethical implications. This kind of selective approach should surely be in response to their conviction to be modern. A related, if less charitable but nevertheless compelling, explanation would be their failure to separate compulsively internalized Western ethos from the Indian sociocultural reality (cf. my article, Annihilationism, the Causative Terrorism, published in these web pages – type the title in the search box). Thus, in a myopic appreciation of the phenomenon, the learned judges have only thought that they are merely concerned with sexual act as a private instance and not about its ramifications on the family and society at large! In short, they prepared a prescription to de-characterize the Indian society by placing individual expediency at the altar.
The legal luminaries had literally enthroned the pleasure principle to the exclusion of all other societal considerations. This means the malaise that is felt in legalizing homosexuality has its origins in the very concept of consensual heterosexuality as the legitimate form of liberal sex. For, gaysex is to be seen, given its forceful refutation as a medical or congenital condition, as a conscious sexual choice. The rarity and the deviant nature of such a conscious choice would itself mean that it is a meticulously sought after sexual delicacy! It is this abnormality that explains reticence of the legal community. For, what they failed to feel in case of heterosexuality – having been rendered insensitive surely due to their Western exposure, they were compelled to take note of in case of homosexuality – that certain sexual practices may not be good for society!
It surely is the extreme and egotistic form of indulgence in self-seeking, focused completely on the individual, that must have intuitively inhibited legal community from extending consensual benefits to homosexuality. But by then the legal fraternity tied itself in knots by consecrating a legal logic whose extension to homosexuality is judicially unstoppable. It is indeed regrettable that a wide spectrum of high-profile personalities from across several socio-cultural domains found it expedient to wear a modernity mask and seek perpetuation and extension of such laws rather than protest against them if only in the interest of building a society with character and moral strength! That is, we are witnessing a queer spectacle of actually debasing our society while claiming that freedom and equality ensured for extending the sphere of such activity constitutes upholding human dignity! Yet, it does not after all amount to upholding human dignity if rights are extended to you to indulge in corruption!
It is therefore required of a judiciary vested with vision and commitment for the country that it should forthwith abrogate such laws sapping the very essence of India‟s civilizational gains by initiating comprehensive discussion as to how best this trend can be reversed. It should finally be noted that any law is in principle exploitable. Thus a demand based on such exploitation (say, police harassment) cannot be an argument for a cause to be given legal respectability. Similarly, more a trend/tendency gains acceptability in the society, more it tends to devour other trends. Thus, liberal practice of heterosexuality gaining currency – both because of the legal legitimacy as well as tacit support from Western countries/ societies – it only tends to crush other tendencies (cf. my article cited above to know Western interest and influence in this matter). Not just gay sex but even traditional marital sex is no exception to this.
Non-adherents are harassed by way of withholding/restricting social promotions, recognition to intellectual and creative works and revenue entitlements. Invisible social ostracization is more a norm than exception in view of coercing adherence to free sex through discrete collective orchestrations. The modernity argument is just a cover not only to shield the illegitimacy of the action but also the stigma accumulated over the years. It hardly needs emphasis that liberal consensual sex also serves as a legal cover for the lawfully proscribed world‟s most ancient profession! That is, such laws achieve the objective of respectably democratizing prostitution in line with the modern Western ethos.
By Dr.Codadu Pratap