Article 377: Getting On The Right Side Of The Issue

In the wake of the Supreme Court hearing the petition for decriminalising homosexuality and the scrapping of the draconian Article 377, the social media has been abuzz with viewpoints both for and against scrapping this archaic section that makes even consensual relations between two adults of the same gender an offence.

While it occasions no surprise that the petitioners against scrapping this section include organisations named Apostolic Church Alliance and the All India Muslim Personal Law Board, sections of the Hindu right joining hands with them is baffling, strategically inept, if not downright dangerous. All right thinking individuals need to ask some hard questions to those asking the Supreme Court to keep Article 377 alive and keep people of same-sex orientation inside the closet. The tactical damage to the cause of dharma aside, these cultural warriors, led by Bharatiya Janata Party (BJP) Member of Parliament in the Rajya Sabha Dr Subramanian Swamy, are treading on dangerous ground that ranges from the shaky to the spurious and the bigoted.

Before we dissect the foolhardiness of the section of cultural right that opposes decriminalising homosexuality, there are two points that we need to settle:

One, a lot of the arguments (both for and against) hinge upon the contention whether same-sex orientation is “natural” and whether same-sex relationships can be classified as “deviant” behaviour. This is a spurious argument at best and fundamentalist and archaic at worst. The modern world is changed and people have moved on. We are living in a highly altered and a new world in one sense, and we are recovering old social norms – forgotten and/or ignored – in another sense. If we agree that the modern living experience is superior to that of the cave dwellers or even medieval times then some credit of that must go to our willingness to incorporate “unnatural/uncomfortable/hitherto private” things in our life. It makes no sense that when it comes to human relationships alone we would make this distinction between the new and the old, the acceptable and the unacceptable.

Sure, moral codes need not change simply based on technological advances, but we have to acknowledge the fact that traditional/ancient Indian society was much more liberal and accepting of a variety of human behaviour before social codes were circumscribed by the influence of Muslim, Christian and medieval social forces. If by “deviant”, one means that human beings are not meant to have sexual relations with individuals of their own gender then the same argument could be made for keeping sexes separate in public, enforcing the purdah, keeping women uninformed and uneducated, not travelling overseas, and a whole bunch of other norms and mores which we have correctly got rid of. I am not saying same-sex relationships are natural or unnatural, but what I am saying is that it is one of those choices/inclinations thatshould be considered private and part of one’s fundamental rights.

Further, as Dr Swamy has said repeatedly, most recently in this interview in Swarajya, that it is not about “punishing gay relations in the privacy of the bedroom” but stopping the glorification of homosexuality. What we can then say is that his prescription is no different from the current criminalisation of gay sex. Unworkable and reeking of moral confusion, a solution/stance like this – similar to the US Army’s now discarded policy of “Don’t ask, Don’t Tell” - is bound to create a class of second class citizens of the LGBT community. By keeping same-sex relationships criminal, people from the gay community are likely to be exposed to blackmail from a variety of forces, including criminal elements in the law and order system. Apart from the social stigma attached to such relationships, and the concomitant emotional trauma suffered by homosexuals, such a position would also lead to other mischief: a political opponent might try to expose his opponent’s same sex relationship (outing him) in order to sabotage his political career; an employee could claim the right to sue his employer for finding his sexual orientation by accident and then firing him for committing a crime.

Further, by not allowing people to have these relationships we are institutionalising the pressure on same-sex orientation people to marry a person from the opposite sex. In such a case, can a spouse file for divorce and deny rights to his/her spouse by threatening to expose their sexual orientation? Dr Swamy’s coy, half-way house solution will simply not work. Just as one can’t be a little bit pregnant, one can’t legitimise same sex relationships a little bit.

In this context, let’s see why it makes no sense for anybody from the cultural right in India to oppose decriminalisation of homosexuality.

To begin with, unlike Christianity and Islam, where the adherents follow more or less a single doctrine/set of rules (with those rules explicitly forbidding homosexuality), Hinduism does not prescribe a single set of rules/doctrines that explicitly forbids homosexuality. Most Hindus who oppose same-sex relations are doing so either out of a puritanical streak, a lack of knowledge or understanding of homosexuality, or because of the influence of Victorian morality. Evidence of this can be seen in the arguments made about the “unnatural” aspect of such relationships. Thus, apart from a sense of personal morality, this opposition to homosexuality serves no dharmic purpose. By refusing to accept homosexual relationships, some members of the right wing Hindu groups have ceded power to and countenanced Christian and Muslim fundamentalists. They are allowing the intransigent Muslim and Christian leaders to not only get out of a tight corner they had forced themselves into but these groups are actually joining hands with bigots and extremists. You have to understand that in a debate on this issue, members of Christian or Islamic denominations have no option but to oppose decriminalisation. By not challenging Muslims and Christians, this section of the Hindu right is letting go of the opportunity to make Hinduism the most compatible belief system for modern societies.

If you take a look at this article retweeted by Dr Swamy on 31 July, you would see that many of the anti-gay arguments made by the Hindu right are a copy-paste of the Christian conservative arguments. This is a paradox often seen on social media where the cultural right that sees proselytisation as the biggest risk to Hinduism in India, which is vehemently opposed to Christianity, co-opt and countenance the beliefs of conservative/Christian organisations. Of course, we cannot simply oppose someone based on their faith identity ignoring the fact that we do share certain values, moral standards, beliefs, etc, even when we are opposed to each other on other matters. Calculations and decision based on political convenience, in these matters, such as the decriminalisation of gay sex, will simply end up not only kicking the can down the road, but worse yet, making us cold, cruel manipulators of society.

Last year, the wife of a BJP leader attending a prayer breakfast meeting in the United States had caused much consternation, and social media “online warriors” had gone to the extent of asking her if she and her husband had changed religions. Yet, the same people will have no questions for the writer of the post I mentioned earlier or the politician endorsing it. Here again, I want to point out that if our responses are based simply on convenience, or influenced by identity politics, or shaped by a simplistic understanding of issues then we do no good to ourselves, nor do we help in advancing our fellow humanity into that space of goodness and equanimity we seek in society.

It is neither my intention nor is it the scope of this article to challenge all the arguments made in defence of keeping Section 377 in force. However, I intend to address two of them before circling back to the damage this stand is causing to the interests of the Hindu right in India.

The first point of contention/belief is whether homosexuality is a disease, and if it is “curable”. There has been enough research and quite a few studies by healthcare professionals across the world refuting these claims. The assertion that homosexuality is a disease does not even pass the basic test of consistency with the rest of the anti-gay argument. First of all, if homosexuality is an illness, then the assertion that it is unnatural (or nurtured) gets automatically refuted. Almost every serious illness found today will have a component of “acquisition” to it. From heart disease to organ failure induced by diabetes there will always be some precipitating factor that can be traced to choices people make. Are we then going to re-categorise illnesses like cancer, heart disease, stroke and multiple organ failure as “unnatural” since by definition any disease affected by lifestyle choices is “unnatural”? Thus the anti-gay movement needs to first decide whether they think homosexuality is an illness that can be cured or it is an unnatural act that needs to be opposed.

Taking the homosexuality as illness argument further, one sees that accepting it as an illness should be an automatic ground for decriminalising it too. Can you think of one other illness that is considered a crime? Mind you, acts committed under the influence of illness (for example violent behaviour by the criminally insane) might be deemed criminal, but it is not the same as considering the mere presence of that illness being a crime. For instance, if a personality disorder patient commits murder because voices in his head ask him to, it will be considered a crime, but will merely hearing voices and responding to them in a way that does not harm anyone else in public be considered a crime

The second point, which was also raised repeatedly in the article above, is the slippery slope argument: if we decriminalise homosexuality today, what is to stop people from demanding legitimisation of paedophilia or incest? I remember someone in the US claiming that homosexuality leads to bestiality. I would argue that not only most of these arguments are false, because for one, homosexuality that is sought to be criminalised is sex between consenting adults, whereas paedophilia or bestiality is non-consensual sex which are indeed criminal in intent and effect.

To repeat, the primary difference between homosexual relations and paedophilia is the lack of consent. A child is incapable of understanding and forming consent and hence any act of sexual nature performed is criminal. The extremists and misinformed or uninformed people who are demanding that paedophilia be added as a facet of the LGBT movement have no takers from the mainstream. There are paedophiles who prey upon all children, boys and girls, and research about the percentage of paedophiles among homosexuals and heterosexuals is mixed, with conceptual errors, statistical errors, and sheer lack of evidence.

The argument about incest is even more dangerous and false. Considering that incest will have a pre-dominantly heterosexual relationships (since in the society at large heterosexual relationships are present in larger numbers), it is effectively punishing the gay community for the failures of the hetero community to keep their own house in order. It is like demanding your neighbour cancel 4G services on his mobile phone because it might tempt your child to spend more time on social media. Putting restrictions on the gay community for the future moral risks faced largely by the hetero community is both illogical and immoral.

From a discourse viewpoint, there are two very prominent dangers of the Indian cultural right opposing the gay rights movement. First of all, if the American LGBT rights movement has any lessons for us, it is that the concerted efforts to oppose gay rights by the Christian conservatives has only allowed the LGBT movement to organise better and for the left to appropriate the role of the gender equality party. This movement has had its share of extremists (like any movement would) that has resulted in the kind of excessive monitoring of language that is doing no good to either side. Unfortunately, at this point in time, the perception of the American right as anti-LGBT is so well-formed that in spite of the left supporting Islam, a religion equally if not more harsh on the LGBT community, the LGBT community has largely remained in the left’s fold.

In this context, it is perhaps instructive to see the evolution of women’s rights in the US and India, specifically, with respect to abortion rights. Again, due to the religious dogma associated with the reproductive rights (abortion is murder), the Christian right has not allowed a nationwide, all-encompassing law putting abortion rights squarely in the hands of women, the way India did in the 1970s. As a result, while the feminists on the left in India attack the Hindu right on many issues, abortion is not one of them, while in the US, women’s reproductive rights remain one of the weak points for the predominantly right leaning Republican Party. The issue of gay rights has potential to reshape an ideology. Therefore, the Indian right would be well-advised to get on the right side of this issue early and decisively.

However, the most important argument about this issue remains the self-interest argument. The precedent set by the cultural right on the issue of 377 can come back to haunt it in the future on matters like the government managing Hindu temples and schools because you are allowing, nay, encouraging the government in its attempt to send the “moral police” into the homes and bedrooms of people. As Stephen Covey used to say – “when you pick one end of the stick, you pick up the other”.

If you read the extensive arguments made by the Indian right on this issue, you would realise that distilled to its essence, 99 per cent of the people are arguing about legislation of their individual taste. Now, being human, some amount of egoism is genetically hard-wired into us. We all see our own lives as models for others and dream of a society where not only our lifestyle choices are popular but consecrated into doctrines to be followed by the generations to come. While these expectations are only human, an organised attempt to impose these choices on those who don’t agree with us is the beginning of the slippery slope that leads to authoritarianism. We better guard ourselves against it. Finally, the Hindu right should ask itself: what are the dharmic principles that can guide us in matters like this? How do we define morality? Who will police whom with what result? Unless we spend time evaluating and applying dharmic principles to these matters of private morality and choices, we might end up supporting an Indian version of the “muttawa”.

(The author wishes to thank Professor Ramesh Rao of Columbus State University, Columbus, Georgia for his extensive inputs and editorial guidance)