AT Cross Roads of Change

Today can turn out to be a momentous day.  The Central Government is going to 'decide' on its view on certain arcane law and this decision can have far reaching effects, including liberalising the society from its colonial hangover and push it towards more individual freedom, liberty and choices.

I'm talking about the Section 377 and the opinion of the Central Government so far in view of the PIL pending (and being heard) at the Delhi High Court.  For the uninitiated, Sec.377 deals with the criminalisation of a range of sexual behaviours.  It 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 term which may extend to ten years, and shall also be liable to fine".  The law also goes on to state that "Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section".  

The law surely packs quite a punch.  In one sweeping statement it makes homosexuality (of the male kind), heterosexual behaviours of anal sex and oral sex criminal.  It does not provide any kind of respite to the practice of sex even within our own private spaces!  Largely the law has been used by policemen to harass people, straight or gay.  The law was drafted by our colonial rulers in 1860.  This law has disappeared from the British courts since the 1960s but stays here and is even largely supported by the Government!

(Of course, I've to explain this before I forget that lesbianism, i.e., homosexuality among women is NOT a crime as per the law because it does NOT involve penetration.  Now, all the men who enjoy watching pornography of this kind - and lesbian women - can heave a sigh of great relief that they're spared).  

An NGO filed a PIL in 2001 against this Section of IPC.  The courts dismissed the PIL on technicality.  However on the advice of Supreme Court, the Delhi High Court is hearing the case filed.  The PIL requests the Courts to decriminalise homosexuality.  Right to Equality and Right to Freedom are some of the fundamental rights the petitioners are quoting the section violates.  Apart from this they also contend that this section ensures that gay men who are more prone to HIV and AIDS do not get the necessary medical treatment as they fear discrimination.  Statistics are being quoted too to support the claim.  

The Government on the other hand is a divided house.  The Law Commission wanted to decriminalise homosexuality in 2001.  The Ministry of Family and Child Welfare proposed the same in 2006.  In Mexico this year, Anbumani Ramdoss, the controversial Health Minister spoke against the law and said it must go.  However the Government's counsel in the Court said, "The Health Minister's views may be ignored" and the Court must only consider the views of the Home Ministry.   The Government is opposing the scrapping of this piece of colonial (shameful) legacy on the grounds of 'morality'.  It also quotes extensively from Christian and other evangelical websites to substantiate its views.  It also states that many Countries like Saudi Arabia, Bangladesh, Nigeria and the like still continue to view homosexuality is undesirable and have banned it in their countries.  What examples to emulate one might wonder when smaller countries like even Nepal have taken the step forward and today even have an MP who is openly gay!  

India has had a pluralistic tradition - in every area of activity.  Be it cultural or political.  The country and its people have always been known for tolerance.  Of the various kinds - political, religious, cultural.  Sex is no different.  We find our own mythology strewn with examples of same-sex couplings, including that of Vishnu (in the form of Mohini) and Shiva.  Same-sex panels of architecture can be found in Khajuraho.  Poets of the Sufi era have celebrated their same-sex love.  We even had a completely women-only state during the Mahabharata!  However it's also true that in the last few decades we are fast losing all those 'liberal ideals' that we have held dear for several millennia!  

In view of the cacophony of several voices emerging from the Government and in view of the advice of the Honourable High Court, the Central Government is meeting today to decide its 'One Voice' on the entire controversy.  What the Government chooses today can epitomise the direction the society as a whole takes from here.  If it chooses to stick to its conservative stand, the Government will NOT lose anything but the society as a whole does, not just the homosexuals who are eagerly looking forward.  Sure it makes the lives of gays a little easier though it's not their deliverance.  A gay man suddenly will not come out of the closet just because homosexuality is decriminalised and declare his sexuality.  Nor would the society suddenly open its arms and say, 'Welcome'.  But these 'necessary' changes CAN take place provided the Government today realizes the importance of its choice.  

The developed and the democratic world has changed in the last few decades towards progress.  South Africa which recently has thrown away the yoke of Apartheid has provided equal rights to people of not just all ethnicities but also of various sexual orientations.  Many countries, including an otherwise conservative Spain, have approved laws that allow gay-marriages.  Some of the states in the US too have initiated similar legislation.  India is still a far cry from these nations.  What is astonishing though is it's lagging behind even its neighbours like Nepal and Bhutan!  The countries that used to look to India for guidance today are charting their own new courses and even teaching a lesson or two to their 'Big Brother'.  

In these dark times of strife, deep communal divide and schisms of all kinds, we certainly do not need another divide to hive our society.  We are creating a new class of 'untouchables' in homosexuals by criminalising their sexual orientation.  If only the Government wakes up to the fact that one's sexual orientation is not something one chooses or changes at convenience - like political parties!