Time to Break Shackles
Let antiquated laws go and same-sex lovers be allowed
to live in dignity
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
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
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
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
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.
[Home] [Editorials] [India]