It is astonishing that homosexuality can be such a contentious topic even in 2018. Section 377 of the Indian Penal Code criminalising homosexuality was formulated by the British in 1861—during the Victorian age—possibly taking inspiration from England’s Buggery Act of 1533. It was a perversion of human rights then, it is a perversion of human rights now. That there should be a debate at all on a bad and cruel law more than 150 years later, is a telling commentary on our political leadership and perhaps even our society. Successive governments and courts have been passing the buck on this injustice for long, each making it the other’s responsibility to declare Section 377 unlawful. In fact, that was expected of the Supreme Court in 2013, when it adhered to Queen Victoria’s views and recriminalised homosexuality, thus negating the landmark Delhi High Court judgement of 2009—a 21st (indeed 20th) century verdict that had been achieved by rights activists and other stakeholders after decades. But then our judicial system too is prone to following other governance structures in its fealty to a 150-year-old precedent. On the other side, the very fact that successive governments did not go to Parliament for debating and repealing Section 377 says a lot about the mindset of our lawmakers. The fear of political controversy may have also contributed to the ultra conservative stand that most lawmakers have taken on the matter. But their worries about any public backlash could be entirely misplaced. The public has many things to think about, and deliberating on the nature of the relationship between two consenting adults is certainly not among their priorities.
The issue is not about the nature of homosexuality—whether or not it is “immoral” and “unnatural”. Such Victorian beliefs do not have any place in a culture where sexuality has traditionally been about openness and freedom, the erotic sculptures on temples being a case in point, or the celebration of androgyny through the form of Ardhanarisvara. And these are just two small examples.
The fundamental issue here is of state’s encroachment on an area which is entirely private. While it was sage on the government’s part to leave it to the “wisdom” of the Supreme Court to decide on the fate of 377, it should not have added caveats such as the scope of decriminalisation must be limited so that other acts stemming from it—the word used by the additional solicitor general was “bestiality”—do not get legitimacy. A country that has the third highest viewership of online pornography in the world, after United States and United Kingdom, is past sheltering from such “bestiality”. As long as the parties involved are consenting adults and public order is not being disturbed, a government that calls itself democratic has no business acting like the moral police do in Saudi Arabia and Iran.
In this context, mention must be made of Section 497 of the IPC, which too is being debated in the Supreme Court. This section criminalises adultery when committed by a man, but not a woman. The Centre is fighting against its removal, with the argument that striking down this provision will decriminalise adultery, thus apparently “eroding the sanctity of marriage and fabric of society at large”. The obvious question that begs an answer here is: who made the government the keeper of Indian marriages? And does not an act of adultery prove that the marriage in question has already lost its “sanctity”? How did the government continue to decide that in 21st century India it is only men, and not women, who commit adultery and that women need to be protected from the attentions of the male species? And just how is adultery a criminal offence? It can be a ground for divorce, but to make adultery a “punishable by prison” offence amounts to the state again encroaching on private space. Fear of law is not enough deterrence for men, and women to stop getting involved in adulterous relationships if they want to. Instead, all that Section 497 does is to give a handle to the revengeful to harass their wayward spouses. Unless such anachronistic and ossified colonial provisions are removed from the rulebooks, the country will have to go a long way before it can call itself progressive and modern.
Since all these issues are fundamentally about personal liberty and freedom, apart from privacy, the state should stop mouthing homilies and instead start, through example, creating an environment where such qualities thrive, in keeping with India’s own ethos of openness.