The Telegraph
Tuesday , January 28 , 2014
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The law is just plain wrong: Seth

A day after VIKRAM SETH spoke out loud against the “recriminalisation of IPC Section 377” at the Kolkata Literary Meet, Metro played Devil’s Advocate on Monday morning, during an interview at Taj Bengal, putting forward the most common objections against legalising homosexuality in India. The author was happy to “rebut”.

Point: Homosexuality is against nature

Counterpoint: That’s not really the case. If you look at the natural world, you’ll find that lots of mammal species and other species as well, from the elephant to butterflies, display a range of sexual behaviour, from purely homosexual to bisexual to heterosexual and even asexual. So there is nothing odd in it in terms of nature. And human beings are also a species, so we should get rid of this non-scientific view of what is for and against nature. In 1861, they didn’t know that, so they kept using these categories. But we’ve advanced, a little, in science, since 1861 and one aspect in which we have advanced is to know that these things that are supposedly against nature are very much a part of the natural world. Through medical science one knows that, through psychology one knows that and perhaps most importantly, through biology and the observation of the natural world. So, in a funny way actually, the ridiculousness of certain laws saying certain acts and certain observations of human behaviour are against nature, that is just plain wrong.

Point: If your dad was homosexual you wouldn’t even be born

Counterpoint: Well, if your dad was a Catholic priest, you would never be born. Should one then completely eradicate the Catholic priesthood? Or for example, suppose you say your father’s a lawyer. If the whole world were lawyers, you wouldn’t have been born because no one could eat, there wouldn’t be farmers around. Does that mean that there should be no lawyers? Fact is, there is a range of human behaviour. It doesn’t mean that the whole world is going to become homosexual or let’s say purely homosexual, because people can be homosexual and heterosexual.

Point: Homosexuality is against Indian culture

Counterpoint: It’s certainly not against Indian culture. It is against Victorian mores and unfortunately the Indian Penal Code came in 1861, thanks to Lord Macaulay. Now for us to be praising that law and doing down our own culture, where homosexuality is very much a part of it. It is not emphasised usually, it’s not denigrated usually, it’s just considered to be an ordinary part of life.

I’ll go first about Hinduism but I’ll also talk about Islam. Other than the Kumbh Mela, the largest mela we have every year is the one to Ayappa. Thirty million people go there. Now, who do you think he was? He was the son of Vishnu and Shiv. Shivji fell so much in love with the Mohini form of Vishnu that he had sex with him and as a result, Ayyappa was born. And Ayyappa is considered one of our great deities.

Then take the temples of Khajuraho. There are plenty of examples of homosexual depictions over there. Take Kamasutra. Take the tradition of the hijras, who’ve been for 3,000 years, more than an accepted part of Hindu and Indian life.

But I would say also Islam. I mean the kind of Islam that came in, like Amir Khusro, or Mir Taqi Mir or even Emperor Babur talked about homosexual love.

So the fact that a few intolerant mullahs and a few babbling babas, like Baba Ramdev, say that it’s a terrible thing, or a few pious padres try to get their act in, doesn’t mean that Christianity, Islam, Hinduism in their actual, human working out, are as intolerant as these so-called expositors. So this business about Bharatiya sanskriti and Bharatiya sabhyata is nonsense. You are the copycats of the British if you insist on keeping this law, which the British themselves have rejected. So you are worse than a copycat.

Point: The law has led to hardly any conviction so why can’t you just let it be?

Counterpoint: No. It has led to a lot of convictions. There have been many cases over the years. But these are reported cases that have been appealed to the high court. Cases that have taken place at the district courts go completely unreported because the person despairs or doesn’t have enough money to appeal. Also, the cases that come up are the tip of the iceberg of oppression. Of police oppression, of rape in thanas, of extortion, of blackmail, of beatings, of general immiserisation of people.

What is worse than that even, I would say, is that by criminalising something and placing a stigma on it, families can put a lot of pressure on a young woman in love with another woman or a young man who has sexual feelings for a friend of his. He begins to doubt himself, she thinks that she’s going crazy, that there’s something wrong with her and this leads to desperate feelings of unhappiness and unfulfilment throughout their lives. And if they are forced into giving dohtas and potas and this that and the other, then they make someone else’s life slightly difficult, sometimes more than slightly difficult, sometimes insupportable.

Point: Homosexuality is a minor issue in a country like India

Counterpoint: In terms of the number of people, it’s not a minuscule number. It is, at a very, very conservative estimate, 5 per cent of the population. Now take the Indian population. Don’t say 1.2 billion, just say 1 billion. That is still 50 million. That is the population of Madhya Pradesh. Of England. Of Karnataka. Of Gujarat. Or Rajasthan. Or France. Or Italy. It’s a large population. And that’s only the people themselves. Not their families, not the people whose happiness partly depends upon their happiness. Now, supposing I agree and say it’s only 10,000 people in the whole of the country. Supposing that were the case, even then it is disgusting to say that these people’s right to have dignity, to have privacy should be trampled upon. It’s like saying the Parsis should be thrown into the sea because they are only a few tens of thousands of people, their rights don’t count. It is an unconscionable attitude towards minorities.

Point: Even after Delhi High Court read down Section 377, it’s not like homosexuals were not discriminated against, so why this hoopla over the recriminalisation?

Counterpoint: It will take a long time. It’s not like the law automatically means that the prejudices are scrubbed out of people’s minds. What it does mean is that at least people come to respect themselves somewhat more. And also, the families cannot point to the criminal aspect and the criminal stigma to make things worse.

Now take for example women’s rights. The fact that sisters can inherit property equally with their brothers doesn’t mean immediately that all brothers give them their share but at least it’s there in the law, that women can have these rights, that they are justiceable rights. If they do not have them, it means there’s no chance of them being able to act upon them. So the law does not mean that all prejudice immediately goes out of people’s souls, that is a slower process. But there’s an interaction between the law leading society and society leading the law. And one should not ignore one for the other. Or say that one can put up with a lot of suffering simply because, oh well changing the law means everything becomes perfect. Nothing in the universe is perfect, one has to accept the good, the sufficiently good.

Point: The Supreme Court has not passed a moral judgement but a legal one. Is it not the Parliament’s responsibility to change a law and not the judiciary’s?

Counterpoint: In our Constitutional scheme, it is indubitably not only the right but the duty of the Supreme Court to protect the Fundamental Rights of Indian citizens. Parliament is a majoritarian institution. It is open to all kinds of prejudices — majorities against minorities, men against women, etc. You know, for example this whole business of trying to get a certain number of seats for women in Parliament. Parliament cannot be expected to do things that are the prerogative and indeed the obligation of the Supreme Court. So the Supreme Court, in this particular case, has declined or in fact has abjured its responsibility to do right by the Indian people in a way that the high court did not.

Delhi High Court said that Article 14 (right to equality), Article 15 (right to non-discrimination), Article 21 (right to life and liberty, which includes the right to privacy and dignity) were infringed and therefore was read down in so far as private, adult, consensual acts were concerned.

And now, of course, Parliament doesn’t have the numbers. Though the Congress said they would [amend the law] the BJP — though not their leader, as if he’s taken a maun vrat on it, he hasn’t said anything — but it is the official policy of the BJP that it should be recriminalised. And the Socialist Party’s. So the Congress doesn’t have the numbers to do it.

Point: Political parties represent the will of the people. So if they are not supporting the reading down of this law, that means the people of India don’t want it

Counterpoint: Let me put it this way. Given our first-past-the-post system, of course it is possible to have 35 per cent of the vote and 50 per cent of the seats. So yes, in terms of a parliamentary system, it’s considered a mandate.

But you say for example that a majority of Indians do want women to be represented in reasonable numbers in Parliament. But unless you can cobble together your 272, you won’t get it. That doesn’t mean that that is the will of the people. It means that it is the will of the people “as expressed in Parliament”. Take that whole phrase together.

It is not a purely numbers-based democracy that we have. What we have is a Constitutional democracy, where if you happen to be a Christian or a Parsi or some kind of minority not hugely represented by numbers your rights cannot yet be trampled over by a majoritarian Parliament. Because the Supreme Court is there to protect those rights.

Are you convinced by Vikram Seth’s arguments? Tell