The Supreme Court of India recently declared a provision criminalising homosexuality as constitutionally valid, overruling a 2009 decision of the High Court of Delhi which declared the same provision was unconstitutional. The verdict upheld Section 377 of the Indian penal code, punishing homosexuality with life imprisonment, describing the ‘crime’ as indulging in ‘carnal sex against the order of nature’.
The Delhi High Court had stressed that moral indignation was not a valid ground to override the right to sexuality, which at the time was considered a fundamental right. In the 98-page decision, the Supreme Court claimed that they overlooked a ‘minuscule fraction’ of the country’s population falling under the ‘LGBT’ category.
The decision was surprising, disappointing to many but making others happy. The decision is antithetical to human rights. Sexuality is not a choice. It is the way a person is, and that cannot form a basis for criminalisation.
Homosexuality is as natural an occurrence as heterosexuality. In animals as well as human beings, the exhibition of homosexuality as a trait is not an anomaly. 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 a definition of what normal is, and in any case, the idea of what is normal and what is not is heavily subjective.
The Indian Penal Code came into force in 1860. It was drafted by the British legislative arm for India during their Colonial occupation. Like many other provisions, Section 377 came from a colonial perspective, largely coloured by a prejudicial perception of the natives. While many diverse cultural practices thrived before the advent of invaders in India, they became more rigid as waves of Mughal and British invasions followed.
Endogamous marriages were soon preferred, caste-based segregation became watertight and ritualistic practices increased. Culture merged with religion, and the new, unholy mix was a repackaged version that was offered as actual religion. True scripture 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, I would like to take a deviating route that merges with the argument that pivots around decriminalisation. My contention is that the very attempt to criminalise homosexuality is unnatural, whether now or back in 1860.
I find it strange that India, a country that has a whole treatise devoted to sex and sexuality, considers homosexuality a ‘western influence’ that denudes the fabric of its social existence. A walk alongside the walls of some Hindu temples, thumbing through texts and ancient laws, 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 it is against Hindu ‘culture’ and that they can ‘cure’ it. It is nothing short of hypocrisy to assert that homosexuality is a product of ‘western influence’.
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 on 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. And once homosexuality is considered normal, there is no question of criminalisation.