[Reader-list] Article on SEction 377 IPC

[rakesh]

 (Indian Express October 30, 2003 - edited version)
GAY BOYZ OR HARDENED CRIMINALS: LAW, CRIMES AND MORALITY

 The Union Government stand on a petition in the Delhi High Court challenging section 377 of the Indian Penal Code (IPC) which criminalizes homosexuality appears to be on shaky ground. The provision with its biblical overtones came into the Indian statute books through enactment by the English Parliament of the Indian Penal Code in 1872! 

 The precedents and judgements adjudicating as to the acts of sex which would fall within the offence created by the section are replete with archaic references to the "Sin of Gomorrah being no less carnal intercourse than the Sin of Sodom" and in concluding that "all the ill consequences (of the sin of Sodom) would equally follow in a city where the sin of Gomorrah was tolerated". In earlier times, alongwith heresy and apostasy, sodomy was considered as a form of treason against God, tried in ecclesiastical courts and punished with death in England. The Sexual Offences Act, 1967 decriminalized homosexual acts between consenting adults in United Kingdom.

 At the best of times the link of societal approval or disapproval to prevalent law is not easy to ascertain. In a society riven by divisions of class, gender and caste, to put forth consensual societal disapproval as the reason to oppose the legalisation of homosexuality seems to have little substance. Phrases like 'society disapproves of it' are more often than not used  to try and buttress one's own biases, prejudices and views and hardly represent a legal argument worthy of adjudication. Barring a direction to hold a referendum on the issue, an argument like 'society approves of it' and the counter-argument that 'society disapproves of it' can hardly be decided in courts which, unlike the media, are concerned with law and not conducting opinion-polls in society. The presumption of an across the board accepted set of mores or norms which have societal 'approval' in contrast to 'disapproved' acts is in itself flawed. 

 Again, lack of universal acceptance of sexual preference in society as a major plank to oppose homosexuality raises the question of the relation between law and the values, norms, behaviours prevalent in a society. In a society which is unequal should the right to equality not be postulated as fundamental? The logic of 'universal acceptance' in society as a sina qua non for law to advance would inevitably lead to the conclusion that the abolition of 'untouchability' under the Constitution and the enshrinement of equality was wrong and pre-mature lacking universal acceptance.

 The reduction of the dialectic and complex interplay of law, society, legal norms and social norms to a linear paradigm of 'universal acceptance' and 'societal approval' would impact social reform legislations dealing with issues like child marriage, pre-natal sex determination, Sati prevention in a major way. The 'acceptance' and 'approval' thesis also betrays a lack of understanding of the dominant norm in society. The dominant norm or ideology is not to be taken to mean that the only the dominant sections share belief in the norm or ideology. The dominant norm subsumes and occupies all space leaving no room for the subaltern. The fact that a large majority of the dominated, the exploited, the discriminated internalize and accept the prevalent norm does not alter the factum of oppression, exploitation and discrimination.

 Norms about a hundred different things ranging from the benign like truth, honesty, integrity to the offensive about colour, caste, class may be prevalent in any society at a given point of time. However, heterosexuality with its constricting of the fluidity and wide range of sexuality is probably the most dominant norm of them all in present times. The tremendous resistance to the acceptance of the simple fact, that just as a certain percentage of people are left-handed and the rest right-handed, people have different sexual preferences - homosexual, bisexual, heterosexual with no issues of morality and values at stake, is indicative of the deep rooted pervasiveness of the hetero-sexual norm. 

 Infact, 'Unnatural offences', the title of the section (377 IPC) and  the use of the phrase 'carnal intercourse against the order of nature' in the main text bring us back to more or less the same basic paradigm. In times when governments are vigourously pushing condoms, intra-uterine devices (IUDs) and injectable contraceptives like net-en, to bring in the binary of 'natural' and 'unnatural' inorder to criminalize an act is indeed an irony! In the premises of this paradigm contraception is "unnatural" stopping the procreation of the human race which is "natural"as is believed by a sizable section in society! Carnal heterosexual intercourse using contraception will have to be penalized as 'against the order of nature' under the section!

 The 'natural-unnatural' as well as the 'acceptance - non-acceptance' paradigm lead to the question whether acts which are deviations from the 'approved' dominant norms should be penalized as crimes by the law. Generally, a person is punished for acts which cause harm to others as in say murder or theft. However, there are certain statutorily created offences akin to criminalizing homosexual acts between consenting adults like penalizing possession of alcohol in Gujarat or of marijuana for personal use, which fall within the category of "victimless" crimes. The rationale for the criminalizing these acts is that they are considered vices which in turn are supposed to lead to crimes.  

 As the Union Government's affidavit puts it deletion or removal of homosexuality as a crime would open "floodgates of delinquent behaviour and be construed as giving unbridled licence for the same". In this era of science no data showing that homosexual activity leads to more crimes has been offered or it appears even been considered before making this remarkable statement on oath in court. Presumably, we are to accept this co-relation as an axiomatic, God-given, self-evident truth!

 The larger jurisprudential question which it raises whether the State should criminalize what it considers to be vices needs to be opened up and debated. Indeed, more than a century ago, dissecting State sanctioned moral coercion, Lysander Spooner in Vices Are Not Crimes: A Vindication of Moral Liberty argued that the government should protect its citizens against crime, but it is foolish, unjust and tyrannical to legislate against vice.     

 Rakesh Shukla

 

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