Decriminalising homosexual behaviour

Repealing IPC 377: Recognising diversity and dissent

Delhi High Court has passed a landmark judgment that severely restricts the scope of the section 377 of the Indian Penal Code. The decision noted, “Respect for human rights requires that certain basic rights of individuals should not be capable in any circumstances of being overridden by the majority, even if they think that the public interest so requires. Other rights should be capable of being overridden only in very restricted circumstances. These are rights which belong to individuals simply by virtue of their humanity, independently of any utilitarian calculation.”

In this article titled, "Recognising diversity and dissent", published in Pragati: The National Interest magazine, in August 2009, I discuss the significance of decriminalising Section 377 of the penal code in the wider political and constitutional context.

The Delhi High Court’s ruling decriminalising consensual adult homosexual acts has not only enabled gays to come out of the closet, but has also revealed many other strange bedfellows. Many leaders of different religions – Christians, Hindus, Muslims, find themselves united in expressing their disapproval. Many others who normally prefer to wear their secular credentials on their sleeves, some seem to have suddenly discovered their affinity to tradition and culture and come out strongly against this judgment, others seem to have discovered that ambiguity and silence are the better parts of valour. The communists, hardly the epitome of tolerance, seem to be the only group among the political class to have welcomed this verdict.

The opposition from the conservatives and the ambiguity among the “secular” political class stems from a failure to distinguish between ethical values and legal implications of this judgment. While laws need to stem from moral values, moral values do not necessarily become laws. Not everything that one disagrees with need to be made illegal. One way to look at this is that while the law provides the floor, the basic framework for individual behaviour in a society, moral values represent the high ceiling, which one should aspire to, but which is well beyond the legal norm. Just as we may endorse the right of smokers or drinkers to pursue the freedom to exercise their choices without actually endorsing many of those behaviours, everyone can endorse the right of homosexuals to pursue their lifestyles, regardless of whether they approve or disapprove of homosexuality. In that context, the Delhi High Court’s ruling to decriminalise homosexual behaviour among consenting adults is a very welcome and long awaited step forward. We human beings have the right to make choices – that is what makes us humans. As Voltaire is famously supposed to have said, “I may not agree with what you, but I defend to the death your right to say it.”

The judgment says, “Respect for human rights requires that certain basic rights of individuals should not be capable in any circumstances of being overridden by the majority, even if they think that the public interest so requires. Other rights should be capable of being overridden only in very restricted circumstances. These are rights which belong to individuals simply by virtue of their humanity, independently of any utilitarian calculation.” This is a lofty and noble idea, and if the Indian judiciary lives up to it, it will be an extraordinary step forward.
The judges relied on Articles 14, 15 and 21 of the Constitution to minimize the scope of section 377 of the Indian Penal Code. A logical consequence of this judgment ought to be decriminalisation of prostitution—same-sex and heterosexual. If, a consensual act among adults of the same sex individuals in private is legitimate, then there can hardly be objection to the oldest profession. That would be a truly historic.

It is also interesting to note that the judgment did not invoke Art. 19(1)(a), and expand the scope of “reasonableness”, although that is what the judgment has sought to uphold by sanctioning diverse sexual inclinations.

The socio-political question is that by making the present HC verdict as a symbol of the change, the gay community may have attracted upon themselves unnecessary attention, and now they may have to prepare to face their long dormant, but reactivated vocal critics. Needless to say that society progresses through such churnings, unpleasant ideas come to the fore, and one has to debate and decide to take sides, but one has to be prepared to pay the price that such churning may unfortunately demand at times.

Law to Legitimacy: Shifting perception of property

The contrast between Section 377 and the right to property could not be starker. Here is a century-old law, part of which had been defunct for all practical purposes. There is hardly a case in recent decades where this section has been invoked to prosecute consenting adults exercising their choice in private. This particular section is largely irrelevant, and could easily be retired. Yet, when the section is read down by the court to achieve precisely that, a fresh debate is ignited around sexual inclinations.

On the other hand, consider the land acquisition act of 1894, another vintage of the colonial era. For decades various governments have been invoking eminent domain, routinely displacing hundreds of thousands of people from their homes, all for the sake of some wider public interest. No court has ruled against the substantive validity of eminent domain so far, upholding acquisition of private property, although increasingly restrained by qualifications. Yet, there is no political authority in the country today that is keen to invoke the law, even as it stands in the statute, to acquire private land any more, increasingly aware of the rising political costs of such endeavours.

The Delhi HC judgment profoundly notes, “The role of the judiciary is to protect the fundamental rights. A modern democracy while based on the principle of majority rule implicitly recognizes the need to protect the fundamental rights of those who may dissent or deviate from the majoritarian view. It is the job of the judiciary to balance the principles ensuring that the government on the basis of number does not override fundamental rights.”

This is an admirable sentiment. For democracy to endure, majorities of the day could not be allowed to degenerate in to mob rule and suppress dissent. The basic feature of democratic functioning is to protect the right of the minority to engage in the debate, and to recognise the prospect that today’s minority opinion may become the majority view of tomorrow if it can peacefully persuade more people.

But how has the judiciary fared amidst constant onslaught on the fundamental right to property? This right is the foundation of all human rights, and there is hardly any right that can manifest without the right to property. The right that the gay community claims is fundamentally a right to use their own body, their most fundamental property, in the way of their own choosing – the right to property, and freedom to express themselves. Why have two pieces of law have generated such diametrically opposite responses? What has changed?

In one there is a ground swell of popular support, in the other, there may be some voyeuristic curiosity, but not much popular support. In one, powerful governments have been brought to its knees. In the other an apparent non-issue has made the powers that be wary of disturbing the status quo. There is a very powerful political lesson in these two contrasting experiences. When the ground shifts, laws either have to reflect the new mood of the public, or become redundant. And without that change in the popular perception, even the most progressive law, may not carry the day. For all these years, the gay community had sought to bring attention to their cause by waving their flag, by standing apart, by claiming to be different. Today, they find themselves largely isolated, the support from the visible and vocal classes not amounting to much politically.

The difference is between legitimacy and legalization. Law is not what is on the statute, but what is perceived to be just. Even in their greatest victory till date, the gay community in India is unfortunately as far from gaining that legitimacy as ever.

The gay community, just like any other minority, need to move away from their sense of collective right as gay, nor flaunt their sense of victimhood. Framing the issue as collective rights invariably leads to pitting one collective against the other, and in such conflict it is not easy to overturn the collective that claims to represent the majority. But the smallest minority in any society is the individual, and his rights need to be protected, so that all minorities may enjoy the same protection, and are treated as equals before the law.

To gain that legitimacy, however, one has to discover the fundamental right, the right to property, which means to recognize and respect that right of every individual human being.
Once society begins to recognise the value of property rights, gays along with the rest of us will find that we can live together respecting each others’ choices and values, even when those values apparently conflict with each other. That would be a victory which all of us would be able to celebrate irrespective of our various identities, status and inclinations. And then the law will not merely be legislation in the statue book, but also legitimate in the popular eye.