Last edited: April 16, 2005

Time to Break Shackles

Let antiquated laws go and same-sex lovers be allowed to live in dignity

Outlook India, April 16, 2005

By Saleem Kidwai

“We are not living in the time of the inquisition,” the poet Firaq Gorakhpuri told a homophobe in 1937, advising him to rid himself of his ‘pedestrian prejudice’. It’s time to remind ourselves of this advice, now that a plea to remove discrimination against millions of Indians has for the first time reached India’s highest court. It is for the Supreme Court now to decide whether those who love people of their own sex will be allowed the basic right to live in dignity.

Recently, the Delhi High Court was asked to strike down Section 377 of the Indian Penal Code which criminalises homosexuality.

The court dismissed the petition on technical grounds. A Special Leave Petition is now before the Supreme Court, which asks the government why the Delhi High Court should not be asked to reconsider the petition.

This is encouraging. The Supreme Court has shown it is ready to intervene in matters of citizen’s rights. This is one occasion when it must. The rights of millions are at stake and a serious health crisis is being aggravated. Hopefully, the Indian government too will dump ‘pedestrian prejudice’ before it presents its opinion to the court. The last government told the high court that Indian society and culture did not accept homosexuality.

Could there be a better example of uninformed ‘pedestrian prejudice’? On what did the government base its assertion? Did it counter the widely available evidence of tolerance? Or was it speaking on behalf of a moral brigade whose acts of harassment and vandalism attract so much media attention but no punishment?

And even if one were to accept society’s disapproval as the basis of law, would the state cite the same reasons if asked for its views on inter-faith and inter-caste marriages?

The government must respond with urgency to the health issues raised by the petition. Perhaps it should re-brief itself with what AIDS activists have to say about Section 377. Homosexual and bisexual men are as vulnerable to hiv as heterosexuals. Lesbians are at least risk. But as long as male-male sexual intercourse is deemed criminal, ignorance will continue and the spread of hiv will increase. Even the most preliminary of statistics show that its occurrence is much wider than most people believe. hiv and AIDS are easily preventable but due to shame, guilt and fear, homosexual men in particular, fail to inform or protect themselves.

The law harms millions of Indians who are attracted to their own sex and benefits no one. The destructive effects of prejudice against same-sex love and the price society pays for it in terms of psychological health are well known. Many heterosexuals close to or related to gay people also suffer because of this prejudice. It forces many growing children to feel stigmatised, maladjusted, suicidal and incapable of realising their true potential. Parents seeking a ‘cure’ to this ‘illness’ find homophobic doctors who recommend horrific and highly questionable treatment for young adults, damaging them for life.

Irrational prejudice forces adults to live in secrecy and enter into marriages where the truth is never told. Unhappiness is built into a supposedly ‘sacred’ union. Women in these marriages are twice victimised because they are vulnerable to hiv through their closeted gay or bisexual spouses. Removing the law might also stop young women from committing joint suicides because they want to stay together and society, with the help of law, makes that difficult.

The law stigmatises homosexuals. Without it, it would be easier for them to deal with personal issues of self worth. Its removal would empower people to fight discrimination in health, employment or housing. To retain a law that is rarely used and yet causes so much harm makes no sense.Instead, the government should concentrate on making firm laws on rape and child abuse, both same sex and cross sex.

Section 377 is defunct yet dangerous. Cases of people charged under the section rarely come to court. Yet, it is widely used for harassment and blackmail, both material and sexual, very often by the police themselves. The government cannot prosecute people for being homosexual unless it turns vindictive. And society must not leave such weapons around for any future witch-hunts.

The law punishes certain acts that are a part of the sexual repertoire of both homosexuals and heterosexuals. However, it is used mostly against homosexuals and bisexuals. Technically, it could target heterosexuals too. Heterosexual married couples can be punished with rigorous imprisonment for oral or anal sex. It’s time the government withdraws from the sexual life of consenting adults.

Homosexuals were first deemed criminals by a colonial government that has decriminalised them in its own country. We removed their statues; why cling to their destructive statutes? India is perceived as one of the leaders of the third world because it is a functioning and innovative democracy. It should take the lead in this matter too. This would give hope to activists not just in South Asia but also in the rest of the developing world.

The large band of dedicated activists who have energised this initiative must be prepared for the worst. Expectations were high. In fact, the sudden dismissal came as a huge disappointment. What if ‘pedestrian prejudice’ prevails again? The fight has been long and must continue.

People who resent discrimination but keep quiet must state their stake against this law. They have to stand up and be counted, for numbers matter in a democracy.

  • Saleem Kidwai is a Lucknow-based writer and co-author of Same-Sex Love in India: Readings from Literature and History.

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