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.