Sexual orientation is not a matter that society or polity should impose upon an individual. At the same time, minority expressions must not upset the values which a silent majority would like to maintain
The statements by Congress president Sonia Gandhi and vice president Rahul Gandhi, both Members of Parliament, supporting the de-criminalisation of homosexuality and proposing statutory protection for gay sex as a matter of individual right, are fraught with grave societal and legal difficulties. It is interesting that while Attorney General GE Vahanvati has chosen to blame Thomas Babington Macaulay for the insertion of the controversial Section 377 in the Indian Penal Code, he is oblivious to the fact that a Western neo-conservative norm about gay sex is being promoted to attack both Section 377 and the Supreme Court’s recent judgement regarding the provision. Yet, Section 377 is necessary for situations where there is no consent and sexual attack is coupled with grave offences apart from the norm of peno-vaginal intercourse.
Section 377 broadly refers to “carnal intercourse against the order of nature” and holds acts such as oral sex, anal sex and the insertion of foreign objects into the complainant’s body — ostensibly in the proven absence of consent — to be criminal. Such offences are common in rape cases, irrespective of whether it was perpetrated on a male or female victim. A case of forced peno-vaginal intercourse must be distinguished from a case where in these additional offences have also been committed as the latter makes for a more grievous crime and is deserving of stricter punishment. The Delhi gang rape case, wherein the perpetrators brutalised the victim (inserted a foreign object among other acts) offers a good example for why Section 377 must stand.
The trouble with mixing the need to punish criminal behaviour and distinguishing it from consensual activity is that the perpetrators of the former will take refuge under the ‘consensual’ argument. The victims in such cases will have to walk the extra mile of proving their bonafides to get the aggressor punished.
Apart from this, the overall argument in favour of same- sex practices as natural human behaviour has only limited evidentiary basis. Interestingly, most of the research on this subject has been done in the West. Few comprehensive Indian scientific studies are available — and the much touted mythological story of a trans-sexual union between Shiva and Mohini’s in this case cannot exactly be considered as hard evidence.
There is no doubt that sexual activity is a matter of intense private choice. No one needs to sniff out or approve the other person’s choice. But the fact remains that the kind of sexuality the state and society prefers to support becomes the norm of the day. Same-sex sexuality is not supported by most religious groups in India or aboard. For instance, Catholic Italy absolutely does not support it.
The state has no business determining individual preferences, but we must not lose sight of the fact that legalising gay sex will in fact invite the public to participate in the debate on sexual orientation. Similarly, if the debate is extended towards, let’s say, the legalisation of same-sex marriage, which will be a socio-legal contract, it could be interpreted as the state propagating the practice of homosexuality.
Think of all the same-sex matrimonial advertisements in the newspapers! Politicians only seem to be looking at the three million homosexual votes in the country as an alluring prospect.
Also, the idea of space to freely exercise individual sexual choice should not be extrapolated to the detriment of the norm, just as much as the norm must not be forced on any. Therefore, what needs to be done is to insert a footnote on Section 377 excluding consensual same-sex relations from being prosecuted under the provision. Alternatively, there can be a separate Bill allowing same-sex relations of consensual nature, excluding them from Section 377 and also allowing civil partnership that could include marriage-like rights to same-sex couples.
In summary, while sexual orientation is not a matter that society or polity can or should impose upon the individual, perhaps it need not be stretched to such an extent that minority expressions upset the values that a silent majority would like to maintain. The state has to balance the right to choose both ways.
(The writer is an IAS officer belonging to the Kerala Cadre and Vice-Chancellor of KVAS University, Kerala)