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A MODEST PROPOSAL
- Towards a pragmatic resolution of the debate on Section 377

Public life is replete with unintended consequences, particularly in a country where people live by their wits. Earlier this week, to illustrate the point, I was told by a distraught gay businesswoman of the experience of another entrepreneur who practices what one important politician has dubbed “unnatural sex”. A few days after the Supreme Court judgment restoring Section 377 to the Indian Penal Code, the businesswoman decided to terminate the services of a casual employee who was clearly underperforming. Upon receiving the marching orders, the angry employee told his employer in no uncertain terms that he must receive a hefty compensation package. Alternatively, he would go to the police and make a complaint that his employer was engaging in criminal misconduct by having gay sex, and thereby open the floodgates of humiliation and harassment.

It is entirely possible that the threat was all bluster. We have, after all, been reminded that Section 377 is hardly ever used, and that since its enactment more than 150 years ago, has been used in only 200 or so cases. Yet, ironically, as my friend pointed out, earlier this pre- Independence law was largely unknown and rarely enforced. However, after the huge publicity surrounding the Supreme Court judgment, there is widespread awareness that homosexuality is a criminal offence. Consequently, the scope for its opportunistic misuse is all that more.

Yashwant Sinha may have been guilty of overstating the absurdity of the United States of America making a fetish of local laws when he suggested that foreign diplomats could be made subject to the draconian provisions of Section 377. But that he chose this particular issue to drive home the absurdity of the harsh action by the New York administration against an Indian woman diplomat is revealing. As things stand today, gay persons in India potentially face greater harassment than they did before the Delhi High Court de-criminalized gay sex in the summer of 2009. That is because Section 377 is no longer a decorative and relatively unknown facet of the law.

Paradoxically, it is the over- exposure of gay activism that may have contributed to this dismal state of affairs. That the intolerance of homosexuality was imported into India by, first, the Christian evangelists and subsequently by orthodox Islamism is a matter of record. In traditional Indian society — there may have been local variations — homosexuality was no doubt treated as individual deviancy, perhaps an example of odd behaviour, but it was never subjected to persecution. In most families where an individual preferred to depart from ‘normal’ sexuality, it was covered up in a conspiracy of silence. People preferred to look the other way and not speak about it in polite society.

This contrived sense of denial was no doubt a deeply unsatisfactory solution and subjected countless individuals to emotional trauma. However, the mere fact that Section 377 became a public issue a mere 15 years or so ago, coinciding largely with the encroaching globalization of India, suggests that society was comfortable pretending that homosexuality was too fringe a matter to lose sleep over. Indian society neither condoned nor persecuted those who deviated from conventional, straight behaviour.

The option of the government acting on the recommendations of the Law Commission and removing consensual, adult gay sex from the list of criminality by stealth has, however, gone. Today, unfortunately, the debate over Section 377 has generated a social schism. There is a brewing conflict between social consensus and individual freedom.

There is a simmering disquiet — and this has gone largely unreported in the media that has quite unequivocally championed the individual’s right to choose his or her sexuality — over the in-your-face assertion of gay pride, particularly as shown on TV. Many politicians I have spoken to have privately suggested that taking up the gay cause would repel voters and even lose votes. In Haryana, for example, Congress functionaries are unhappy that Sonia and Rahul Gandhi went public with their criticism of the Supreme Court judgment on Section 377. There are few takers for the callow minister of state who told some MPs that since there are (by one estimate) some three crore of people who fit the LGBT definition, the Congress’s stand will influence some 30 crore votes in the coming general election — the assumption being that each LGBT will influence at least 10 more people.

The questions go beyond the imaginary numbers game. The Bharatiya Janata Party president, Rajnath Singh, may have been articulating conservative concerns when he argued that the law could not condone ‘unnatural sex’. Yet, he didn’t grapple with the question as to why the law should address any consensual act — no one denies that 377 has a role in punishing both involuntary sex and sex with minors — in the first place. Homosexuality may well be the subject of individual or even collective derision, but should the State be concerned with what happens in the privacy of a bedroom?

Alas, the State does intrude into what may seem to be private. There are restrictions on both food and drink that are born out of either custom (the ban on beef in many states) or invented tradition (prohibition in Gujarat). Institutions such as marriage are regulated and there are laws governing inheritance and adoption. For a statist, Section 377 could well fit the scheme and be attributed to the need to preserve what the philosopher Roger Scruton called “common decencies”.

For social conservatives who attach primary importance to family and other kinship ties, the great fear is that an extra dose of permissiveness will lead India mirroring some of the social dysfunctionality of the West. Interestingly, this does not always lead to a full-throated endorsement of Victorian morality. A very prominent BJP leader, who has maintained radio silence on the recent controversy, remarked to a colleague that, in the West, the state routinely separates minor children from their mothers and entrusts them to State-sponsored care. This, he suggested, would be unthinkable in India, except in the rarest of rare circumstances. The implication of his observation was clear: homosexuals are members of a family and cannot either be disowned or brutally criminalized for their sexual inclinations.

India may comprise of many conservative societies. But this wariness of swimming with the latest fashion is also balanced by accommodation and tolerance. To my mind, this is the key to a pragmatic resolution of the recent challenge.

The issue is not the legitimization of homosexuality by moving towards the recognition of gay marriages. Nor is it a question of conferring social legitimacy to gay sex. To some, same- sex relationships will always remain unnatural and sinful and no amount of persuasion will alter that view. To others, it will be value-neutral and a matter of individual choice.

Yet, what is deemed sinful or unnatural need not necessarily be criminal. At the heart of the Section 377 debate is the issue of criminality, and here it is indeed possible to distinguish between the legal and the social. In the past and even now, society has come to terms with morganatic relationships. Sheer pragmatism and an overriding sense of humaneness should also be allowed to prevail in society’s approach to gay relationships.

In today’s India, gay relationships embrace a wide social diversity. Indeed, there are creative professions where gay people rule the roost. Far from being disruptive deviants, they are very much in the mainstream of productive India. For such individuals to be harassed, humiliated and tarred as criminals is plain wrong. The social consensus depends on an ever-changing moral majority; the law, however, must be based on fairness and justice.