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When relics of our cultural heritage like temple carvings show the prevalence of the various sexual orientations, then why are we criminalizing them?
The Supreme Court of India, in December 2013, held that the provision that criminalises homosexuality continues to remain in force, and remains constitutionally valid. In saying so, the Supreme Court overruled a decision of the High Court of Delhi, which in 2009 had ruled that the same provision was unconstitutional. The verdict upheld the validity of Section 377 of the Indian penal code, which penalises homosexuality with imprisonment for a life-term in jail, and describes the ‘crime’ as indulging in ‘carnal sex against the order of nature’.
The Delhi High Court asserted that moral indignation was not a valid ground to override fundamental rights – and the right to sexuality was, in the process, considered a fundamental right. In the 98-pages-long decision that marks the overruling, the Supreme Court has claimed that the Delhi High Court has overlooked that a ‘miniscule fraction’ of the country’s population falls under the category of LGBT.
It is not surprising that the decision disappointed many, while making many happy. The latter, it appears, are what have become infamous as the ‘moral police’.
More recently, Dr. Shashi Tharoor tabled a bill to decriminalise homosexuality, and his move was met with churlish giggling from different quarters, and unparliamentary behaviour in the form of cheap comments. It was no surprise that the bill never saw the light of day.
The decision, in a nutshell, is antithetical to human rights. Sexuality is not a choice: neither is heterosexuality nor is homosexuality. Think of it as similar to a blood group or to an eye colour. It’s the way a person is, and that cannot form a basis for criminalisation – would you like it if the world criminalised you and people like you, for the blood group you belong to?
Let me start from the top. The Indian Penal Code came into force in 1860. It was a piece of legislation crafted by the British legislative arm for India, which was their colony back then. Like many other provisions, Section 377 was a by-product of a colonial, more specifically, Victorian perspective that was largely coloured by a prejudicial perception of the natives.
While many cultural practices thrived before the advent of invaders in India, they turned doubly rigid when waves of invasions followed by the Mughals and the British Empire. Endogamous marriages were soon preferred, caste segregations became watertight and ritualistic practices increased. Culture became merged with religion, repackaged and offered as actual religion. What the scriptures really said lay forgotten, as the fear of religious dilution led to warped perspectives taking over lifestyles.
While much of the rhetoric is often piled on in favour of decriminalising homosexuality since society has changed, I would like to take a deviating route that merges with this one at some point when the argument pivots around decriminalisation. My contention is that the very attempt to criminalise homosexuality is unnatural, whether now or back in 1860.
With that in writing, I find it strange that India, a country that has a whole treatise devoted to sex and sexuality – considers homosexuality as a “western influence” that denudes the fabric of its social existence. A walk alongside some Hindu temples’ walls, thumbing through texts and ancient laws in India will show you that homosexuality not only existed in Indian society, but was also accepted, appreciated and given enough importance so as to be able to form reliefs on temple walls. And yet, the very people who profess to be gurus and leaders with knowledge grounded in Hinduism are the ones that believe that they can ‘cure‘ homosexuality, or that it is against Hindu ‘culture‘. It is nothing short of hypocrisy, therefore, to assert that homosexuality is a product of ‘western influence’.
For starters, homosexuality is as natural an occurrence as heterosexuality. From animals to human beings, the exhibition of homosexuality as a trait is not an anomaly. Secondly, a sexual orientation is as natural as having body parts, and is technically not an aberration on anything that is deemed normal. That being said, we don’t have a right to claim that we have a definition of what normal is, anyway – this idea of what normal is and isn’t is heavily subjective.
Whether in India or anywhere else in the world, the fact is that homosexuality is normal and should be seen as nothing else but that. Tolerance is not enough – for tolerance implies conduct at the lowest rung in the ladder of acceptance – what is truly needed is a paradigm shift in the mindset of the people to see it as nothing besides the norm. If that’s going to be the norm, where’s the question of criminalisation?
Image source: rainbow coloured heart on a white background by Shutterstock.
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