Wednesday, October 01, 2008

Homosexuality and the Law

Yesterday's edition has an editorial on legalizing homosexuality. True to form, The Hindu comes out in favor of legalizing it. That is not itself the issue - almost the entire news media supports such a move on various grounds. The controversy here is about doing it through the courts. The law reads:

"Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for term which may extend to ten years, and shall also be liable to fine."

A previous verdict has established that homosexual sodomy comes within the ambit of 'carnal intercourse against the order of nature'. The editorial regrets that this is not a 'progressive' interpretation. But how else could one expect the court to interpret it? The law was formulated in the Victorian era where sodomy was a crime and had been so for a long time consistent with centuries of Christian teaching and practice which consider it a sin. Surely, upon introduction in India, it carried the very same meaning by implication.

Next it argues that the law has been used 'to harass those with alternative sexual orientations and is manifest as an intolerant symbol of the unacceptability of gay behaviour'. As a plain reading suggests, the law is aimed at a particular sexual practice, not a class of people. Yes, there have been instances of abuse but which laws cannot be abused to harass people especially in a country like ours where it is often said that due process itself constitutes punishment? It is not as if the paper consistently advocates fewer laws; it is only the laws that do not serve its own agenda - basically the creation of a strongly left-leaning Central European style liberal democracy - that it chooses to oppose.

The Hindu has seized on an erroneously worded line in the Home Ministry's affidavit that mentioned 'widow remarriage' as a crime having been brought 'under the purview of criminal justice'. While it does suggest that the document was not properly proof-read before submission in Court, the paper's depiction of its meaning is grossly unfair. The Additional Solicitor General (ASG) mentioned it while making the point that criminal laws mirror political and social morality and will undergo change as and when public opinion is altered; widow remarriage was mistakenly included along with some examples to illustrate this phenomenon such as dowry, child marriage, domestic violence, etc. which came about following active efforts by social activists (in all likelihood, he was referring to the positive change brought about by the Widows Remarriage Act, 1856 that was passed following reform by I.C.Vidyasagar and others).

It is true that the Naz foundation is seeking that this law be not annulled but 'read down' to only exclude private consensual sodomy between adults. The Hindu declares its full support to this legal adventure insisting that 'Anti-sodomy laws which explicitly or implicitly treat homosexuals as criminals have no place in a modern, liberal society'. Perhaps the law ought to be repealed but that is beside the point here. The question is whether laws can be read up or down by courts like this based on the whimsical demand of some NGO. I have heard of laws being struck down when they are unconstitutional but not 'read down' especially when their meaning and implications are not in question. It is one thing to argue that a ban on sodomy is unconstitutional but to suggest that some forms of sodomy but not others are constitutional? The notion is quite strange apart from seeming untenable.

That is not the only thing that is unusual about this case. Much of the argument has revolved around why a ban on sodomy is bad for HIV prevention and legal opinions and reports of foreign countries (The matter has attracted considerable interest and an update of all the proceedings to date have been posted here and here) neither of which is at all relevant to the question here. The law is the law for good or for worse. The fact that it may be harder to prevent HIV because of it is hardly a reason to strike down a statute. Besides, what do the conclusions of foreign courts divorced from their basis have to do with the status of a law in India?

Despite such flaws and a logic that on many an occasion flies in the face of common sense, it does appear that the paper's wish might well come true. The government which opposes this petition has done a poor job of defending its position. Also the judges have already made some adverse remarks against the other counsel B.P.Singhal and R.S.Kumar who are also opposing it. It would therefore not be all that surprising if the eventual judgment came out favoring the petitioners and the gay rights activists who have fought for this outcome for the last few years.

8 comments:

Dirt Digger said...

Pilid,
I'm not a legal expert here, correct me if I'm wrong, isn't what the NGO's fighting for (and Chindu supports) is an amendment to the established law?
This case is like the various legal battles around marijuana and its usage. What do you think?

Pilid said...

DD,
You are right - it is sort of like an amendment. Of course, you call it an amendment only if a legislature passes it, not if a court were to declare it so. Courts as everyone knows are only supposed to interpret the law, not rewrite it. Admittedly, there may be a degree of overlap between those two separate functions but here, the answer is perfectly clear - nothing in the text of the existing sec.377 allows for such a fanciful view.

I know that debates over legalizing marijuana have been going on in a lot of countries. The principle in all these cases is quite similar and boils down to the answer to the question: is it legitimate for a state to ban individual practices that do no harm to others?

Mayuresh Gaikwad said...

You say that the law is against a particular sexual behavior and not against a community.

You fail to realize that a homosexual is not homosexual by choice, but by birth. Call it a disability, if you must. But a homosexual is born as a homosexual, with hardly anything to choose.
To all those who support a law which prohibits freedom of sexual orientation, I pray to God that your entire progeny is born as homosexuals. This should especially be the case of the ministers who defend it.

Obviously, the laws are flawed and need to be rewritten (through whatever it takes.... amendment / act / action by the court / what have you)

Pilid said...

Mayuresh,

The notion that homosexuality is by birth is not fully correct. Studies have shown that while there may be a biological predisposition for it, other environmental and perhaps cognitive factors are almost certainly involved. In that sense, it is different from say skin color which is fully inherited.

However, is this a condition that can be treated (as different from whether it ought to be treated)? Probably not. But the same can be said of adultery/polygamy and pedophilia - a genetic basis for polygamy has been recently found and the high relapse rate among pedophiles suggests there may well be a biological basis for that as well. Should those too then be legalized? Moral acceptance by society and biological fact are two separate things with the existence of laws being determined by the former.

Mayuresh Gaikwad said...

Pilid,

A pedophile assaults a child, that is the difference.

Sex between two consenting adults should not be anyone else's business other than those two.

About polygamy, I say yes. It should be allowed for everyone (polyandry and polygyny). Only coercion should not be tolerated (I know it willbe very difficult to prove coercion, but that is the case with normal marriages too!)

In India, it is anyways allowed for Muslims, why should he law be different for anyone else? Are Muslims special? or are the others children of lesser Gods?

Adultery is a looked down upon because it affects not just the people indulging in it, but their spouses too. The individual rights of the spouses need to be protected too. The option is to be single and sleep around!

Anyways, one good thing that would come up if homosexuality was allowed in India is that the population would come down! Just kidding :)

Pilid said...

Mayuresh,

Not all pedophilia involves assault. It can certainly be consensual. For example, children over sixteen are free to have sex - statutory rape is defined only for those below that limit - so why not allow sodomy for children over that age? Besides, what is so sacrosanct about sixteen for giving consent when sexuality is already being felt as early as the age of ten?

You are right that adultery affects spouses. I do not know if you watched that NDTV program recently where Ashok Row Kavi, the gay rights activist said that 80% of homosexuals in India are married to women. If so, cheating on their wives by sleeping with other men is very much the homosexual equivalent of adultery for heterosexuals. The case for not legalizing it will become very weak.

Mayuresh Gaikwad said...

Hi Pilid,

I agree when you say that homosexuals married to women are cheating when they sleep with other men. Yes, it does involve adultery. However, I suspect that most homos marry women because marrying another man is not allowed by law! Let homosexuals marry another man and if they then commit adultery (either with man or woman), they are committing a crime.

About children, this is where I disagree. I think even though the child may reach puberty at 10, he/she is not fully capable of thinking for himself / herself. But you are right, if children over 16 are free to have sex, they should be free to have homosexual sex too. All I am concerned is that the child of 10 usually does not know what to do with his/her new found "adult" body and may need time to adjust completely to it. So, it amounts to another person taking advantage of this fact and forcing himself on the child, a crime by any standards!

Unfortunately, I did not watch the NDTV program you mention

Pilid said...

Mayuresh,

Homosexuals marry for social reasons because of the expectations of parents/family/relatives. The stigma associated with not conforming to expectations is sufficient to cause many to marry. Legalizing it is but a small but significant step.

As for children, many countries across the world allow children to have sex - South Korea for example has an age of consent of 12 years. (In the past, at common law, age of consent was 10 years). Most societies nowadays do not see anything wrong with children having sex with other children. However the acceptability does not extend to adults - even when it does, the age gap is often limited by law. For example, some jurisdictions allow fifteen year olds to have sex with 17 year olds but not 19 year olds. But we all know that many young women prefer older men - 19 year olds marrying 40 year olds is well heard of. Is this some preference that suddenly emerged when they were 18? Of course not, preferences are formed much earlier even if they are given expression to later on. So why should younger people be allowed to have sex with children but not older ones? It is solely because of the 'yuck' factor - the moral opprobrium that societal morality attaches to the idea rather than any scientific reason for it.