The battle over Section 377 is a symptom of a much larger problem

There are two significant things about the recently-revived debate about Section 377 and the decriminalization of homosexuality.

The first is that the debate is taking place at all. At a time when most liberal democracies are either legalising gay marriage or legitimising civil unions, it is extraordinary that India still insists on treating homosexuals as criminals. It is as extraordinary that the abolition of this medieval provision should be regarded as controversial.

 

But it is the second factor that really worries me. The more I participate in debates on the issue on TV and social media, I am struck by the failure of our society to recognise first principles or to understand the deeper issues involved. We have now become a society that judges each issue without reference to any principles and makes every decision on the basis of noise, hype and pressure.

 

   Let’s take the defining characteristic of liberal democracy. Throughout the debate we have heard homosexuals referred to as “a minuscule minority”.  Obviously this is not true. But even if they were a tiny minority, so what?

 

   The point of a liberal democracy is that it protects the rights of all individuals, not just those of the majority. After all, the majority rarely needs protection. It wins elections and calls the shots.

 

   But in today’s India, there is a nasty and triumphant majoritarianism. Many minorities feel under attack. It is not just Muslims, but as the recent Hyderabad University suicide demonstrates, it is also Dalits and others.

 

   Homosexuals may be a minority (though, sadly, one that our Founding Fathers neglected) but that does not exclude them from the protection and legitimacy granted to all individuals in a liberal democracy.

 

   Then, there is the general misunderstanding about the purpose of criminal law. The law exists to protect individuals, not to oppress them. The guiding principle is that the law only intervenes if somebody’s actions harm somebody else. In the case of consenting adults engaging in homosexual acts, it is hard to see who is being harmed.

 

   Yes, there are some laws that punish behaviour even when there is no direct harm. Take, for instance, the laws against drugs. But these are usually justified on the grounds that people who take drugs will harm society by their behaviour. When no harm seems likely to result, most liberal societies have relaxed these laws. For example, possession of marijuana is slowly being decriminalised all over the West.

 

   To use the criminal law to arrest homosexuals, we need to demonstrate that homosexual acts in private will harm society. As homosexuality is legal in most liberal democracies and there has been no damage at all, this is impossible to do. In fact, by reference to those examples, we can prove the exact opposite.

 

"But such is our mystifying blind adherence to the laws of our former colonial masters, that not only do we keep Section 377 on the statute books, we even pretend that it stems from our own Indian traditions."

   Then there is that 'against our tradition' argument. This has been used a lot lately to justify everything from refusing women entry to temples to imposing dress codes. Usually the proponents and beneficiaries of this argument are heterosexual men.

 

   The 'it is not our tradition' argument is a dangerous one. Not all traditions are good or worth keeping. Dowry is a tradition. Sati was a tradition. Not allowing women to own property was a tradition. The history of human development is the history of the battle against regressive traditions or against those that have ceased to be relevant.

 

   But here’s the thing: homosexuality is not even against Indian tradition. There are references to homosexuality in ancient Indian texts and homosexual love is depicted in Indian art and at such places as the temples of Konark.

 

   The origins of Section 377 lie not in any Indian tradition but in the British Raj. There are few (if any) instances of Indian laws that punish or arrest homosexuals before the British introduced Article 377 in the 19th century, using the Christian phrase 'against the order of nature', effectively lumping consenting adult homosexuals with paedophiles and those who committed bestiality.

 

   The British themselves recognised how idiotic this was and legalised homosexuality in the UK half a century ago.

 

   But such is our mystifying blind adherence to the laws of our former colonial masters, that not only do we keep Section 377 on the statute books, we even pretend that it stems from our own Indian traditions.

 

   And the final worrying aspect of this debate is the manner in which religious bodies have now joined the case. A Muslim organisation and a church association told the Supreme Court that they were opposed to the decriminalization of homosexuality. No doubt, as time goes on, the likes of Baba Ramdev will also assert their view that homosexuality is a sickness.

 

   The majoritarianism of the Hindutva brigade has never been a secret. But there is something deeply disturbing about the sight of minority religious bodies leaping into a battle that does not even directly concern them only so that they can continue to oppress another minority: India’s homosexuals.

 

   What it proves is that India has now become a society of hyperbole and prejudice and not one of principle. We are a country where discrimination is so rampant and so widely accepted that even minorities want to discriminate against other minorities.

 

   Section 377 criminalises perfectly decent members of society for no good reason and has contributed to destroying the lives of many, otherwise law-abiding homosexuals. That alone is reason enough to strike it down.

 

   But what the banality and prejudice of the arguments for retaining it tell us is even more worrying. We are in danger of becoming a nasty, majoritarian society where the rights of the individual count for less and less. The battle over Section 377 is a symptom of a much larger problem.