Can he do it?
Karan Thapar
Sunday Sentiments in Hindustan Times - August 28, 2004
When the thought first entered my head I dismissed it as flippant. But it
wouldn't go away. It kept repeating itself until I realised I had to take it seriously. That's what I intend to do today.
It all started when one of our new young MPs - who, understandably, must remain
nameless - asked me "how do you think I should make my mark?" His
desire to rise above the herd and distinguish himself by association with a
cause was understandable. At the time, I could only think of routine humdrum
issues of caste, religion, law and order or even economic affairs. But later
that evening, as I reflected on this young man's ambitiousness, it struck me
like a bolt of lightening. Now I've had time to cogitate I know it's the right
thing to do.
My advice to this young MP is to move a private member's bill decriminalising
homosexuality by repealing Section 377 of the Indian Penal Code. Written in 1871 it reads: "Whosoever voluntarily has anal
intercourse against the order of nature with any man, woman or animal shall be
punished with imprisonment for life."
The case against Section 377 is almost irrefutable. Firstly, India is perhaps
the only serious democracy where the law criminalises what consenting male
adults choose to do in the privacy of their bedroom. Even if at some point in
history this was considered justified today it's not the business of the law to
interfere. But by continuing to do so we make a mockery of our commitment to
human rights leave aside all the Geneva conventions we have signed up to. So,
for the sake of our democracy, this must be repealed.
There is, however, a second argument - based on practicality rather than
principle. By criminalising the sexual orientation of homosexuals society forces them to seek their pleasures furtively and thus makes
them liable to blackmail and criminal vendetta. And if they catch infection it's
unlikely they will openly seek treatment. Fear of the law prevents it and that,
in turn, undermines efforts to control AIDS.
The argument against repealing Section 377 is of two types. First is the
position that homosexuality is evil and sinful. This, to be honest, is the traditional position of the Church but it's not limited to one
religion alone. But then remember in the 17th century
left-handedness and hexadectylism were considered signs of sinful deviance.
Today we've outgrown such nonsense so why are we unable to cast aside narrow
outdated positions on homosexuality?
A more potent argument is the claim that in a democracy the law must reflect the
consensus of the majority and in India this is against decriminalising
homosexuality. On the surface this appears to be an unassailable defence. But is
it? Our politicians led from the front - rather than follow the pack
- when it came to reservation for dalits and reform of the Hindu faith. In fact
they did so in the teeth of opposition from the majority. Then why not
here?
The truth of the matter is that sex between men is not as exceptional as we
think it is. Nor is the taboo against it universal. A recent but unpublished
study by the UNFPA has revealed that unmarried men in rural India are more
likely to have sex with another man than with commercial sex workers. They may
not consider it homosexuality - and, technically, it may not be - but an
aversion to such sexual relations is clearly missing. The Greeks used to
consider it the purest form of love and Pathan poetry is full of it. The
`modern' taboo is Christian in origin and, I'm told, alien to India's
traditional attitude to sex.
Yet the irony is that in Christian countries like Britain and France the law
criminalising homosexuality has been repealed. In Britain it
happened in 1967 when Leo Abse moved a private member's bill which rapidly won
support from Roy Jenkins, the Home Secretary. Today that bill is recognised as a
symbol of contemporary Britain. Leo Abse is one of its heroes.
So you see why the idea that started of as flippant could be irresistibly
serious? I would hope that the young first time MP has
the courage to take on this challenge. If he does the major political parties
might support him with a genuine vote of conscience. And if that happens I'm
sure the law will be repealed. The credit would go to the MP but the benefit
would accrue to Indian democracy.
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