The argument for abolishing Section 377 is usually framed in terms of harassment. While consensual homosexuality might be illegal, few prosecutions are actually brought under this provision. When consenting homosexuals are arrested, it is usually on the grounds of public indecency.
But as long as the law remains on the statute books, all practising homosexuals are at the mercy of the police. And given the record of India’s police forces, it is not surprising that homosexuals are routinely harassed, blackmailed and threatened.
Those who want the law repealed, ask the obvious questions: why keep an Act on the statute books when it is so rarely used and so often misused? If your concern is with homosexuals preying on children or making public displays of themselves (both commonly expressed views), then there are other laws to take care of that.
Why hang on to this one outdated law?
A second argument is that the law has actually had no effect on the spread and occurrence of homosexuality. Thus, it has clearly failed to achieve its stated objective.
Think about it. A young man or woman reaches adolescence, comes to terms with his or her homosexuality and decides that he or she prefers people of the same sex.
Do you really believe that such a person will then say, “Oh dear. But I cannot be a homosexual because it is against the law. So I will become a heterosexual instead.”
Of course not. All the law does is push homosexuality even further under the covers. A young person coming to terms with his or her sexual orientation will be forced to lie, to hide, to pretend and to inhabit a nether world where love affairs are conducted in secrecy.
So what good does the law do anyway!
A third argument and one that crops up again and again in debates on the subject is one of religious acceptability. Those who want homosexuality to remain illegal will tell you that it is against traditions/culture/religion etc.
Advocates of legalisation will respond that this is not true. They will pull out instances of homosexual behaviour from Indian mythology and history. Religious leaders will come up with counters. And so on.
A fourth argument is that homosexuality is legal in most Western countries, that open homosexuals (such as Peter Mandelson, who virtually runs Gordon Brown’s British government) occupy high political positions and that most States that do not allow homosexuality tend to be repressive in other areas as well.
Frankly, faced with this mountain of evidence and the many arguments in favour of scrapping Section 377, I can’t really see why the debate should go on for much longer. It really is a no-brainer. The advocates of legalising homosexuality have logic on their side. Their opponents have prejudice and at best, religious injunctions.
But here’s my point: I think the debate is irrelevant.
Let’s assume that all of these arguments in favour of scrapping Section 377 did not exist. Let’s imagine that the law was properly enforced and was more than an excuse for cops to make some pocket money. Let’s imagine that it did actually have the effect of reducing the incidence of homosexuality, which it clearly does not. Let’s argue that the religious injunctions are valid. And let’s pretend that no other country has legalised homosexuality.
I would still demand the scrapping of Section 377.
The basis of all laws in a liberal society is that they exist to protect people. In the case of some laws this is obvious. The criminal law exists to protect us from theft, assault, murder, cheating etc. In other cases — say, defamation, drunken driving or treason — this is less immediately obvious but not difficult to grasp.
The business of the law is not to regulate our private lives. That may be the job of religion but even that is a personal choice. When the law does interfere in our private lives, it can only be to ensure justice to individuals. Thus a marriage and a divorce can be the subject of law to ensure that neither partner suffers in the division of assets, child custody etc.
But relationships cannot be the law’s business. If I choose to break up with my girlfriend or if she cheats on me, neither of us can go to a police station to complain. Even in the case of a marriage, if I have a fight with my wife, the law has no locus standi. (Unless, of course, I assault her and the normal criminal law comes into play.)
By and large, we accept this distinction between public and private, between our right to live our lives as we choose and the law’s need to protect individuals from assault, fraud etc.
The glaring exception is Section 377. It goes against every principle that we regard as fundamental to a liberal society.
It allows the law to enter our bedrooms where it has no place. It destroys any sense of individual responsibility because it says that private acts between consenting adults are illegal. And it protects nobody: two consenting homosexuals do not need or ask for the law’s protection. (Ironically, in those areas where they may want help, such as the division of assets after a break-up or inheritance, the law ignores them by refusing gays the right to marry.)
So the real problem with Section 377 is not that it doesn’t work, or that it is misused or that it ignores centuries of same-sex love.
The problem’s that it extends the scope of the law beyond what’s necessary or legitimate in a liberal society.
Allow the police to decide what two homosexuals can do in their bedroom and you have no logically consistent reason for refusing to let them decide what two heterosexuals can get up to. (And indeed, in some US states, that argument has been used to criminalise oral sex between husband and wife!)
I have some sympathy for the religious leaders who oppose homosexuality (well, okay, not a lot of sympathy actually!) but their writ extends only to those of their followers who choose to listen to them. No pandit, no padre, and no maulvi has the right to tell me how to live my life if I don’t want him to.
And religious leaders cannot ask the law, in a secular society, to legislate on the basis of religion. Their place is the temple, the mosque or the church. It is not the legislature or the police station.
I can understand why homosexuals oppose Section 377 — it turns them into criminals every night. And I can understand why sensible people recognise that it has failed, and why the judges ruled against it on Thursday.
But what we all need to understand is this: the problem with the law is not that it targets homosexuals. But that it extend the frontiers of the State into all our bedrooms. And that includes heterosexuals.
It is against every principle that a liberal society is founded on.