HOMOSEXUALITY – A Curse or a Crime?

The recent bold and landmark judgment delivered by the Delhi High Court in India concerning the ‘gays’ has created a stir and set an animated debate in the country, not unexpectedly. What the judgment sought to undo is the inconsistency in the law (as contravening the constitutional provisions) that needed updating since long, for upholding the rights of an unfortunate but significant section of the people.

THE GAYS:
The term ‘gay’, apart from meaning ‘homosexual’ – also characterizes, in general, the ‘cheerfulness or pleasure’. And apparently for this reason that the homosexuals preferred to be called ‘gays’. The group is variously known as gay men, bisexuals, hijras, kothis, panthis, lesbians and trans-genders. The gays are universal and not peculiar to India alone. There are an estimated 2.3 million homosexuals in the country, with Hyderabad alone accounting for over 1 lakh. These people are often the butt of snub and ridicule, and suffered indignities and discrimination by the society.

HOMOSEXUALILTY:
The homosexuals indulged in weird and unnatural acts with the same sex people. The society at large has not matured enough to accept such an unseemly wont. It is one thing against which all the religions stand united, remarkably, in condemning it. They view homosexuality as immoral and a sin. And treat these people as sinners and the perverted lot.
The psychologists admit that homosexuality is not a disease. It looks to be a disorder – disorder of a different kind, though. According to Dr. Varkha Chulani, a psychologist at the Lilavati Hospital in Mumbai (India), ‘Preferred homosexuality is nothing but a tendency to desire same sex partners. It is not a disorder. It is a mere preference. However, homosexuality becomes a condition only when people opt for it due to faulty ideas about themselves and their abilities’.
It could be largely due to the fear of rejection by the opposite sex. It should be understood that ‘homosexuality is unalterable’ and accordingly, the society must try to empathize with those cursed ones. Besides exposure to criminal charges, the homosexuals faced social stigma and isolation.

THE MORAL ASPECT:
It has been the case of the moralists, and rightly so, that homosexuality is a slur on and detrimental to the moral fabric of the society, and is strongly condemnable and thus should be treated as a criminal offence. While there could be no two opinions about its adverse effects on the society and the culture of the nation, the law concerning homosexuality appears to negate some of the Constitutional provisions pertaining to the individuals.

THE LAW:
Section 377 of the Indian Penal Code (IPC) treats homosexuality as a crime and punishes those who are indulging in it for ‘carnal intercourse against the order of nature’. The ‘culprits’ are visited with the punishment of imprisonment for life, or with imprisonment upto10 years and fine. This law, enacted in 1860, was intended at checking the moral degradation of the society due to gay sex which is considered ‘immoral and reflection of a perverse mind’.
However, the Section is hardly put to effective use against the homosexuals, as is evident from the fact that there has not been a single conviction of homosexuals in the country. Absence of registration of complaints is said to be the main reason for it. And the lack of complaints is quite understandable because the homosexuality is practiced largely by mutual consent, and in privacy. Nevertheless, there have been complaints of the Section becoming a tool in the hands of the police to harass the unfortunate ones.
The Section 377 IPC, however, appears to be utilized in the cases of sodomy and child molestation, as there are no separate laws to deal with such cases. The government has not thought it fit to review the said Section, despite the changing moral values and norms in the fast changing times.

ARTICLE 14:
Article 14 of the Constitution of India guarantees, inter alia, ‘equality before law’ to all people. Any law or statute is subservient to the Constitution, and therefore, Section 377 IPC seemingly contrives the provisions of Article 14. Besides, the Section also violated the fundamental rights of life, liberty and equality (or, non-discrimination).

THE JUDGMENT:
The Delhi High Court has ruled that consensual sex between two adults of the same sex cannot be considered a criminal offence, and emphasized that inclusiveness was a basic tenet of the Constitution and that deviants or different people were not to be left out of its ambit. Consequently, the Bench said, “We declare Section 377 of the IPC, in so far as it criminalizes consensual sexual acts of adults in private, is violation of Articles 21, 14 and 15 of the Constitution’. The Section 377, IPC will however continue to be applicable in respect of the non-consensual sex involving minors indulged in by the homosexuals.

THE REACTIONS:
While this historical judgment has brought cheers to the gays and all those advocating, for decades, the rights of the gays … it equally stunned those with traditional beliefs and thinking, and attracted adverse reaction. The mixed reaction it evoked was on the expected lines, though. Significantly, the AIDS Control Society of Andhra Pradesh has hailed the judgment as being helpful in spreading the message of HIV control among the MSMs (members of sexual minority), and it counters the argument that allowing homosexuality would result in the increase of HIV cases. Many political, religious and even some Student Organizations have expressed their serious reservations, as according to them, by legalizing the unnatural homosexual relationships, the Court is only opening the flood gates to the spread of such lascivious relationships openly. They have variously termed the judgment as unfortunate, dangerous and irreligious! The Muslim clerics in Moradabad have already issued a fatwa against homosexuality, declaring it as illegal.
Shri Lalu Prasad Yadav, the RJD supreme and the ex-Railway Minister, has reportedly gone one step further by threatening to commit suicide if the homosexuality is legalized in the country!

THE NEED FOR EMPATHY:
Homosexuality – though the very term sounds repulsive – can be said to be a state of mind, besides being a ‘biological’ need and the psychological urge of the gay people … just as the sexual needs of the heterosexuals. With more and more number of gays emerging, it has become a fact and reality of life, and come to stay. ‘The homosexuality is unalterable and is left best at that’, as Dr. Chulani rightly puts it. It should be objected to and made a criminal offence only if indulged in with the minors and un-consenting persons, and in public. Otherwise, the government or the religious institutions should perhaps not bother to peep into the bedrooms of these people, with a view to pulling them out and punishing them.
The gays are looked down upon, isolated, scorned at and harassed by the society for ages – for no fault of theirs! Gayness is an unfortunate ‘abnormal’ physical state and deserved empathy. It is a curse, not a crime – to be borne as a gay. Just like the normal persons, the gays too suffer from compulsions of biological (?) and physiological needs, and the urge to gratify them. They have a right to live their own lives, of course, without being a menace to the society. It cannot be gainsaid that if the gayness were to be treated as illegal, they would sure suffer from both psychological and physiological problems. In their anxiety to avoid ridicule and humiliation, these people tend to be compelled to conceal their homosexuality and contract marriages. This is bound to have adverse effects on their lives. Unable to cope with the psychological factors due to failed sex and the life, the person may lapse into severe mental depression and develop the tendency to commit suicide, even. The woman married to him too may meet the same fate, once she came to know of the truth. If it were legalized, gay people would be able to come out boldly and face the society with confidence. Many women could be saved of the risk of marrying a gay person unknowingly.

THE STRUGGLE AHEAD:
In recent times, with the problems of the gays getting public exposure, many human rights/civil rights activists and organizations have taken up the cudgels. The present judgment has emerged as a result of the sustained efforts of one such organization called, The Nazi Foundation that fought a legal battle for 7 long years - raising hopes and pumping oxygen to the aspirations of the homosexuals, and giving impetus to their movement for equal rights on par with the heterosexuals.
The final word, however, is yet to be said in the matter, and the gay rights activists must be preparing for yet another long legal battle as the Central government is susceptible to pressure groups and sure to go in an appeal to the Supreme Court against the Delhi High Court’s verdict, especially in the light of the hue and cry raised by the moralists and the all-important religious bodies. (Even as this article is being penned, an astrologer – and not the government – has filed an appeal against the judgment in the Apex Court, which has issued notices to all the concerned).
If the gays win their case in the Apex Court, then India would become the 127th country to have acknowledged and restored the rights of the homosexuals. While the concerns aired about the moral decadence due to unnatural sex by persons or groups are well-founded and cannot be brushed aside lightly, those who are vehemently opposing the gay rights would do well to effectively check the uncontrolled access to the various porn sites on the internet – which is really eating into the moral and cultural fabrics of the society and the nation. The real threat appears to lie there, if only one cares to look into.

*********

Impressum

Texte: All Rights reserved
Tag der Veröffentlichung: 20.11.2010

Alle Rechte vorbehalten

Widmung:
To The Unfortunate ones!