Are we ready for gay rights?
In the stirring and thought provoking words of Jawaharlal Nehru – "if there is one constitutional tenet that can be said to be (the) underlying theme of the Indian constitution, it is that of inclusiveness." Those who constitute the minority should not be looked down upon in the society. In a judgment made by the Delhi high court on 2nd July, the court declared that section 377 of IPC-where it "criminalized consensual sexual acts of adults in private"- violated fundamental rights to personal liberty(article 21 of the constitution),equality(article 14) and prohibition of discrimination(article 15), thereby decriminalizing gay sex. The Delhi high court declared that section 377 denies a gay person a right to full personhood which is implicit in notion of life. A law branding one section of people as criminal based wholly on state's moral approval of that class goes counter to equality guaranteed in the constitution. This decision has also been unanimously supported by medical and psychiatric opinion that homosexuality is not a disease or a disorder and is just another expression of human sexuality.
The amendment of this antiquated and archaic law has finally catapulted India into the twentieth century in the true sense. Such a step reduces the scope for the harassment of the LGBTs (lesbians, gays, bisexuals and transgenders) by the thuggish policemen and also paves way to reduce the social stigma faced by this community. Such a giant, albeit delayed step has acted as a purveyor of the amendment and abolition of many such archaic laws that have hindered the growth of our society. The queers who were till now veiled by the presence of this law can finally come out in the open without being ashamed. This minority has at last been vindicated. The government has no right to punish somebody on the grounds of one's sexual preferences.
Such a decision also promises to be a benediction for the country's National Aids Control Organization (NACO). Such oppressive laws had driven men who have sex with men (MSMs) into seclusion thereby making it harder to curb the spread of AIDS among them. NACO estimates the prevalence of this infection within the community is 7.41%- the highest among all high risk groups. Section 377 acted as an impediment to the working of NACO to curtail the spread of AIDS with the MSM community. Now it will be possible to reach out to them and protect them against HIV. Criminalization of sexual activity between males has always been a major cause of AIDS in many countries. Seven out of ten countries with the highest reported HIV rates among gay and bisexual men criminalize homosexuality.
Also, India now seems to have shed the distinction of being among the 10 countries that impose imprisonment for gay sex. Its rival China decriminalized homosexuality way back in 1997. Even Nepal, though more illiberal than India, took notice of this touchstone issue and its government turned gay friendly in 2007. France was the first country to legalize homosexuality in 1971 and many countries have followed in its footsteps. More than four decades have passed since and it was about time that India followed their lead and took upon a progressive mindset towards this issue.
On the flipside of this landmark and revolutionary decision, there has been strong opposition from various religious groups across the spectrum calling gay sex "unnatural" and "against the will of god." They think that it violates the fundamental norms of a family and is an aberration in family life. But even they are not in favour of calling it a crime but thinking of it as a sin. Though many believe that it is not a part of the Indian culture, homosexuality has always been narrated matter of factly in our ancient texts. Indian lore is full of such tales. In Valmiki Ramayana, there are descriptions of rakshasa women who kiss women on Ravana's bed. Krittivasa Ramayana is a story of two widows who drink a magic potion and in the absence of their husband make love to each other. Homosexuality has always been a part of the Indian culture according to our ancient texts and sculptures.
It is about time that the people of India become ready to have a positive outlook towards this fraught issue. Discrimination is the antithesis of equality. As a society we should move towards being inclusive and respectful of our differences. This judgment has acted as a catalyst, encouraging our legislators to consider the rights of every individual and modify laws accordingly from time to time. Criminalization of homosexuality has now become a relic of the past and it is only through more awareness that it will gain acceptance among the masses.
By
Tushar Dutt
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