Verdict on Section 377
Nothing in the judgment targets any group, but supporters of Western agenda miss no opportunity to plump for complete disintegration of institutions of family and marriage.
By Maqbool Ahmed Siraj
Much of the outrage being poured out against the Supreme Court judgment upholding the legality of the Section 377 of the Indian Penal Code is misplaced. Some people have read too much in the judgment and are whipping up fears that homosexuality is being criminalized and homosexuals are being targeted as criminals. A closer reading would reveal that the judgment does neither of it, notwithstanding serious reservations all upholders of morality, and moral and religious values have against homosexuality.
Let us first read the section 177 of the Indian Penal Code. It says: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
The Delhi High Court on February 3, 2009 had struck down the provision of Section 377 of the Indian Penal Code which criminalised consensual sexual acts of adults in private, holding that it violated the fundamental right of life and liberty and the right to equality as guaranteed in the Article 14 and 15 of the Indian Constitution.
Even a simple reading of the Section 377 would reveal that it does not classify a group indulging in any such act, hence there is no scope for it being violative of Article 14. The law does not talk about gays or homosexuals as a group. Moreover, the section only fixes penalty for carnal intercourse against the order of nature and could apply equally to both homosexuals and heterosexuals alike. The Supreme Court merely said that wrongs perpetrated on the gay community by a false reading of this section, if any, did not make the law unconstitutional. It went on to ask the Government to clarify the law to avert its misapplication.
Seen in this background, all the brouhaha over the judgment, seems craftily designed to promote the Western agenda of popularizing the gay, lesbian and live-in relationship against which there is a grand consensus among all groups who cherish family values and consider the family as the bulwark of a stable society. It must be borne in mind that notwithstanding whatever law may say about illegality of the unnatural acts between two consenting adults (of same or different sexes), it is highly impossible to book them for what they do in private. So the question of Section of 377 being applied itself is very limited, unless someone confesses or commits the act in public amounting to lewdness in which case even a permitted sexual act would attract punishment.
The real apprehension is that under the guise of rights of LGBT, a section of rights activists seek to nullify the institution of marriage, legitimacy of children, adoption and a whole host of traditions that ensure the social stability. It is only a male-female relationship that can biologically sire a family and it is the institution of marriage that legitimizes the ties and lays down an arrangement for emotional, psychological and physical needs to be met in the fulsome manner. Be it Hinduism, Islam or Christianity, family is seen to be the bedrock of society and anything that strikes at its roots should be considered detrimental to human progress. Attempts to walk out of this perimeter of definition of a family is fraught with grave social risks. Some of these are already evident in the Western society where gay marriages, single parent homes, polyamoralism (several men and women living together under one roof with complete sexual laissez faire), and adoption of kids by same sex couples, legitimsing of children born outside marriage, are leading to ruinous consequences. No wonder then why kids growing up in homes shorn of love and warmth, turn out to be vagabonds and indulge in shootouts in campuses, churches and theatres. Having done away with marriage, the pro-LGBT groups are most likely to come up with demands for legalizing and legitimizing each of the deviant practices that have led to so much of human misery in Europe and the Americas.
Welfarism in the West has averted much of the mess from surfacing on the social plane in considerable measure. Creches, day-care centres, assisted living facilities, old age homes, and orphanages and their efficient management has helped them stem the rot to some extent. But nothing of these have helped mitigate the loneliness of the Western individuals with hedonism running berserk and threatening to undermine the social fabric.
It could well be argued that marriage and family too suffer from major infirmities today. Dowry, caste based alliances, divorces, honour killings, family disputes, hassles over property have fouled the course of marital lives. Yet, family remains the major social and economic bulwark against chaos. It is time its foundations are reinforced against corroding social influences of live-in relationships, uncared for kids, single parent homes.
As for Islam, the Quran is clear that biological ties are valid only between a male and a female. It relates the story of qaum of Lut (the nation of Lot)”similar to one in Bible”which attracted the collective destruction of the cities of Sodom and Gomorrah for deviant sexual behavior. As a prophet of God, Lut preached to his people. The Quranic verses says: We also sent Lut. He said to his people: ‘Will you commit lewdness such as no people in creation ever committed before you? For you come in lust to men in preference to women. No, you are indeed a people transgressing beyond bounds’ (7:80-81). In another verse, Lut advised them: ‘Of all the creatures in the world, will you approach males, and leave those whom Allah has created for you to be your mates? No, you are a people transgressing (all limits)! (26:165-166). The people rejected Lut and threw him out of the city. In response, God destroyed them as punishment for their transgressions and disobedience. These verses could be cited in support of the prohibition of homosexuality. But Islam does not make it liable to punishment as it is difficult to prove. Moreover, since Islam also places a strong emphasis on an individual’s right to privacy, a “crime” is not carried out in the public sphere, it is largely overlooked as being a matter between the individual and God.
For the sake of tiny minority of LGBT the security net of family for an entire population need not be sacrificed. However, the issue of rights of sexual minorities such as trans-genders needs to be contemplated. No cogent thinking could emerge on the issue in the past as these sections were not clearly identifiable in a strictly gendered society which accepted no grey areas. How one deals with people with amorphous sexual orientation is clearly an issue for reflection.