The subversive potential of homosexuality has been the theme of endless sermons from the pulpit and countless drawing-room tittle-tattle. But few expressions of mirth and righteous indignation can match the intriguing hypothesis proffered by The Times in an editorial on the occasion of the formal unmasking of Sir Anthony Blunt as a lapsed Soviet spy in November 1979.
Alluding to the social milieu of the upper-class homosexuals who embraced communism in the 1930s, the newspaper observed that “theirs was largely a homosexual culture, with necessary dependence on ties of friendship rather than on the functional ties of family, and defiance of conventional sexual morality leading to a broader moral relativism. Even in the case of Maynard Keynes, perhaps the finest product of this culture, there may be a parallel between his emotional resentment of the monetary rules which prevented inflation, and particularly the gold standard, and the need to reject the conventional sexual morality of his period. He did not like rules”.
At a time when the disregard for fiscal prudence has become the hallmark of ‘inclusive’ development in India, it would be fascinating to see a connection between the Manmohan Singh government’s economic profligacy and the Delhi High Court’s judgment de-criminalizing consensual homosexual sex. In ruling that Section 377 of the Indian Penal Code violated the fundamental rights of gays, their lordships deemed that the principle of inclusiveness warranted the negation of existing rules.
Whether this unshackling will lead to a rash of creativity, creating windows of opportunity for an intellectual wizard like Keynes, a treacherous aesthete like Blunt and a dissolute spy like Guy Burgess, is a matter of conjecture. In the short term, there is certain to be a fierce battle between the upholders of faith-based morality and the advocates of unlicensed personal freedom which is calculated to leave at least one side bruised. In the long run, however, the outcome of this (as yet judicial) conflict may well determine the parameters of India’s future social development.
The issue at stake is not the letter of Section 377 of an IPC, which was drafted by noble Victorians as a carbon copy of existing English law. There wasn’t anything specifically colonial in the criminalizing of homosexuality in India. That same-sex relationships were sinful was conventional wisdom in Europe ever since the New Testament declared it a “perversion”. “Make no mistake,” Paul proclaimed colourfully in his first Letter to the Corinthians, “no fornicator or idolater, none who are guilty either of adultery or of homosexual perversion, no thieves or grabbers or drunkards or slanderers or swindlers, will possess the kingdom of God.”
The process of limiting homosexuality to being a disqualification for entry through the pearly gates rather than a criminal offence on earth took a long time coming. Those who rant mindlessly about Section 377 being an insidious colonial legacy should note that the British parliament put homosexuality — involving consenting adults of 21 and above — outside the purview of criminal law as late as 1967. It should also be noted that the inclusion of homosexuality in the general lowering of the age of consent to 16 in 2000 was fiercely resisted by the House of Lords and the Christian churches. As late as November 2005, the Roman Catholic Church reaffirmed that “the Tradition has constantly considered them (acts of homosexuality) as intrinsically immoral and contrary to the natural law. Consequently, under no circumstance can they be approved”. It is incidental that Rome has the added problem of deviant clergymen ready to skirt the trauma of celibacy with violations of the natural law.
Field Marshal Montgomery offered his own quirky way of disentangling the knotty conflict between morality and an increasingly permissive social environment. In 1965, during the debate on the sexual offences bill, he proposed an amendment putting the age of consent for homosexual sex at 80. Even his fellow peers couldn’t agree.
Last week, the conservative Bishop of Rochester, Michael Nazir-Ali, reignited the debate in the church of England. “The Bible’s teaching shows,” he said, “that marriage is between a man and a woman. That is the way to express our sexual nature. We welcome homosexuals, we don’t want to exclude people, but we want them to repent and be changed.” In a similar vein, the Roman Catholic Cardinal of Latvia has recently warned of an emerging “era of sexual atheism”.
What is significant about this ongoing tussle between theology and culture is that disapproval of gays stops short of moves to restore homosexuality as a criminal offence. Among the Christian clergy, there is a broad acceptance that homosexuality is on a par with adultery, a sinful act in the eyes of god, but not an offence that warrants criminal prosecution. This is also the position of a minority of Muslim theologians who argue that while Islam is categorical in its disapproval of homosexuality, it doesn’t stipulate the exact punishment for the offence. The death punishment for homosexuality in Islamic countries such as Saudi Arabia and Iran apparently flows from man-made Islamic jurisprudence.
Since the Hindu way of life is neither an ideology nor governed by texts whose acceptance is obligatory, there is no such thing as a Hindu view of homosexuality. There are divergent views in ancient texts and there are many social practices that highlight the Hindu penchant for accommodation. However, the absence of rigid theological prescriptions doesn’t distract from the fact that homosexuality was seen as an aberration in Hindu society. It was accepted as an awkward reality but never celebrated.
India may not have experienced the virulent homophobia that was a feature of many Western and Islamic societies but there was no social acceptance of homosexuality. It was, at best, seen as a fringe phenomenon which had to be tolerated as long as the “deviants” kept their sexuality private and didn’t disrupt society. There was a special status and role for hijras, the “third sex”, but this institutionalized accommodation on the fringes of society wasn’t extended to gays. The IPC superimposed a law on an unwritten social code marked by both passive intolerance and generosity. In any case, it is important to note that the law existed merely on paper. Actual prosecution under Section 377 had ceased long before the Delhi High Court judgment.
In justifying the decriminalizing of gay sex, the high court argued that “Constitutional morality” must take precedence over theology and public opinion, “even if it be the majoritarian view”. The point was well made but is fraught with a wider significance. Can gays now plead for a redefinition of marriage on the grounds that a man-woman arrangement is inherently discriminatory towards those who prefer a same-sex bonding?
That’s only the tip of the iceberg. If the criminal ban on homosexuality violates the fundamental rights and dignity of some individuals, it follows that all personal laws must be tested against this principle. If equality becomes the litmus test, can the existing Muslim personal laws relating to divorce and polygamy withstand impartial judicial scrutiny? Can the principle of inclusiveness extend to gays but not to Muslim women? Can the government enact Shah Bano-type legislation if it violates a fundamental right of the Constitution? The Supreme Court will have to consider these questions when it hears Baba Ramdev’s appeal against the high court verdict.
The Times may have been prescient after all. Eschewing the rules (of nature) may well open the floodgates of a wider churning. Why confine the legacy of Keynes to the fiscal deficit alone?