Homophobia, Human Rights and Indian Culture: Myth and Reality

Chapter XVI, Section 377 dating back to 1861 during the British Raj criminalizes sexual activities, men having sex with men, women having sex with women or both, "against the order of nature."

Indian Penal Code:

" Unnatural offences.-- Whoever voluntarily has carnal intercourse against the order of naturewith any man, woman or animal, shall be punished with 1[ 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. Explanation.- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section."--Chapter XVI,Indian Penal code, Section 377

 Constitution of India:

"No person shall be deprived of his life or personal liberty except according to procedures established by law." The rights to life and personal liberty are inherent in human beings and the Constitution does not confer them on persons. Article 21, thus, seeks to protect these inherent rights by prohibiting the State or any person from depriving a person of the right to life or personal liberty except in accordance with a procedure established by law.--Article 21, Constitution of India

Let's move over the legal technicalities of both laws, Section 377 is an archaic and retrograde law dating to the Raj Era while Section 21 protects human rights in line with the Constitution of India. Sadly so, the Supreme Court Judgement on December 11 which is a retrograde in nature and archaic has upheld section 377 that makes love between gay couples illegal and, in the same vein, overturn the landmark judgement delivered by the Delhi High Court judgement of 2009 which legalized homosexual acts among consenting adults. Certainly, December 11 is a black day for human rights.

It is revolting that we are living in 2013 and a legal stamp has been splashed on a law dating back to 1861 that makes gay sex and love illegal. The December 11 judgement is ironic since, on one hand, we term gay sex as illegal and, on the other hand, our constitution guarantee the protection of personal freedom and ensures the right to life and personal liberty. Are the learned judges saying that article 21 is illegal? Or is that, the court and police will come and arrest people who make love within the confines of the house, albeit, bedroom? 
Let's take a common example. I am heterosexual and, if tomorrow, I decide to have a homosexual experience with a partner in a hotel room or within the confine of my bedroom, will the police come and arrest me? If yes, on what basis? For making love. Isn't it ridiculous?!

The judgement treats homosexuals as criminals and it means that two men or women having a physical and intimate relations will be arrested based on their sexual inclination. It seems that we are back to the stone age when two consenting adults making love to each other are labelled as criminals. I don't understand how same sex love can be brandished as illegal and criminal activities considering that they are not killing or raping anyone. Let's face it: The judgment emanates from homophobia sparking violence and hatred against people with different sexual orientation. What hurts the most is when someone raping a girl is let off on account that the person is a juvenile at the time, the crime was committed but we declare homosexuality or love making as a crime. Love is love and doesn't matter if it's heterosexual or homosexual love.

 The SC judgement has missed the cue. It's not about sex or thrilling experience among men and women just for the sake of it. Activists campaigning for the legalizing of homosexuality and, ultimately, same-sex marriage want a society free of discrimination and where human rights are respected. Some people are putting too much emphasis on the whole heterosexual and homosexual debate which is ridiculous, according to me. There are several instances where gay people are discriminated against and they are scorned upon in society in instances where they want to file a police complaint on account of harassment or violence against them. This is just one example but there are cases where their partner indulge in violence against them. I mean where do they go to ensure that their rights as human beings are respected with the archaic and retrograde Section 377? The victims become the perpetrators of a crime that was never committed in the first place existed. This is simply ridiculous.

As far as terming gay sex as unnatural, I just want to ask how does one defined natural sex? In that sense, even masturbation or kissing between a man and women should be considered to be a criminal act or an un-natural act.

The book of love or sexual guide, Kamasutra describes independent women who frequent their own kind or others as Svairini, the liberated women, who refuses a husband. In the same Kamasutra, Svarini is also described as a women with no sexual bars, makes love with her own kind and strokes her partner at the point of union which she kisses. ( Jayamangala on Kama Sutra 2.8.13). Therefore, the issue of unnatural sex doesn't arise at all and it is, in fact, a blurred definition of what constitutes natural sex.

The ninth chapter of Kamasutra alludes to Tritya-Prakriti (third sex)  who are emotionally attached to another and who eventually marry as well as men with masculine and feminine leaning who love each other. Such relationships between men and women involves love and trust. Therefore, the argument that homosexuality is unnatural and it is a West import doesn't holds ground at all and is a ridiculous argument to contend with. It is a fact that sex as an emotion and unifying factor to express love has always been part of the Indian culture as early as the fourth century and those belonging the homophobia should visit the Khajuraho temple which will remind them that they are living in constant denial. In short, homosexuality is described as an art form of love making and there is nothing that says it is alien to Indian culture and it has always been ingrained in India since times immemorial. Moreover, Rig Veda which exist since 1500 depicts sexual acts between women as revelations of feminine world where sexuality was based on pleasure and fertility.

As a heterosexual, I respect the rights of homosexuals to love and live their life on their own terms. Our scripts and sculptures have always recognized the rights of same-sex people to indulge in sexual pleasures based on trust and love. Homosexuals doesn't bite and it is a big human tragedy to prevent people from loving each other and treat them as criminals in society. It is not just about sex or erotic pleasure for that matter, but a recognition of the rights of LGBT as human beings who have the right to love and life in society as human beings alongside any other ordinary morals. The logic is simple: If we are perpetuating discrimination against homosexuals, it is the same as discriminating against a person on account of ethnicity, race or sex.

India is considered to be the biggest democracy in the world and the Government and opposition should cast aside their political differences to come out with a legislation that will repeal section 377 that discriminates against human beings on account of their sexual orientation. One cannot accept an outdated and archaic law that spark hatred against human beings. We are living in 2013 and we will soon usher in a brand new year where we must celebrate human beings as unique individuals and not necessarily as men, women, brothers, sisters, sons, daughters, husband or wives. It is the biggest tragedy on earth to devoid someone of their rights as human beings.

Make Love Not War

Vishal