Defining The Indian Outlook Towards Homosexuality – II

In a previous article we looked at the legal aspect of the debate surrounding decriminalisation of homosexuality in India. In the present section we make an attempt to examine the matter from an ethical perspective.

Compared to other countries, homosexuality is an extremely marginal phenomenon in India. This is despite the fact that homosexuals have historically never been persecuted in India. These two factors itself would make the panoply and vehemence of the decriminalisation demonstrations in recent years seem incongruous. But there are other things about the movement which are more disquieting, which is the bid to push fads to achieve parity with the Western rights movement projected as benchmarks of progressive values.

(Source: Free Press Journal)

The assumption of a neutral position by the government at the centre in India with the withdrawal of the challenge to Section 377 of I.P.C. that hitherto marked the Centre’s stance, finally paved the way for revoking of the provision by which homosexual behaviour is criminalised. The decision pending with the highest court finally came through on Thursday writing down the section to exclude homosexual acts between consenting adults. The grounds for these were sound enough, those of equal consideration and human rights for all individuals before law, but what’s galling is the pharisaical tenor of the judgment replete with exaggerated literary flourishes that try to elevate a matter-of-fact review of an antiquated penal provision into some kind of momentous point for humanity, which is frankly ludicrous! Each of the judges of the five-member bench vied to outdo the other in histrionics dealing out florid lines of contrived wisdom. Instead of trying to appear as champions by playing to the gallery, the learned ones would have done well to tone down the judgement and insert some sense in all the noise on this issue.

Equally laughable to witness is the exultation among Indians, who are almost always ready enactors and perpetuators of memes that catch their fancy, incapable of thinking through matters deeply, in short, a ready population of useful idiots for every cause-monger looking to gain strength in numbers.

When a provision rarely invoked (by the statement of the Hon’ble Supreme Court of India itself), of incidental implication and applicability to the tiniest minority is hailed as a ‘country getting back its oxygenand that it is now that ‘we are a functional democracy where freedom of choice, speech and rights still exist, one must wonder at the seriously misplaced sense of priority and self-interest, especially since many other glaring inequities and discriminations persist in the realm of social justice, both unconstitutional as well as constitutionally sanctioned, which affect much wider demographies, some which threaten the very roots of our civilisation. But getting into the details of those does not concern the issue at hand. When people who annually congregate in all parts of the country in parades strutting around in flashy, outlandish costumes, kissing in public view to wave their sexuality under the noses of a queasy general population, and those who are known to routinely barge into neighbourhoods and homes of heterosexuals in gangs to intimidate and extort exorbitant amounts of money from them, threatening them with vandalism and indecent exposure, claim that “history owes an apology to the members of this community” it couldn’t possibly get more farcical than this.

The apex court earlier held that “sexual orientation is an essential attribute of privacy”. We agree, that an act of intimacy between two individuals in private should be kept that way. But there is nothing private in the way the ‘LGBT community’ has been making a loud spectacle of their choices forcing the rest of society to grin and bear it. There is no reason to make heterosexuals feel guilty about the natural revulsion they feel at viewing homosexual acts, to make them gulp down their feelings of disgust just because the LGBT community assumes a self-righteous position on account of alleged “oppression” which could never be demonstrably proved before law.

In response to an advocate favouring the retention of section 377, on account of the societal opinion being averse to homosexuality, Chief Justice Misra affirmed that “constitutional questions cannot be resolved by a recourse to referendum.” But one may ask, why must the course of society be dictated by pressure groups who try to override common sensibilities, foisting upon them ideas inconsistent with their values?

The persecution of homosexuals in Christian lands has created a backlash which now seeks to aggressively overturn the established order of society by trying to force a deviant behaviour to be accepted as norm. There has been an insistence on treating homosexuality at par with heterosexual behaviour. Some militant activists even claim that heterosexuality is taught and not a natural tendency. Not only is this patently a false conclusion from observable behaviour at large, if one assumes that homosexuality is inborn, then heterosexuality must be inborn too, and sheer numbers indicate that it is former that is peculiar and the latter standard. It is quite clear since homosexuals cannot beget homosexuals, they are born of heterosexual unions. So an aberrant urge  cannot be considered at par with one that arises from fundamental, natural reproductive impulse which is the underlying cause of attraction between the sexes. While both procreative and pleasurable sex of all kinds is commonly indulged in by humans, sexual desire is not merely an urge like hunger or scratching an itch, but one of the strongest creative energies with procreation its subconscious driver and ultimate function, irrespective whether the act actually leads to creation of progeny.

A ‘naturally occurring tendency’ and those that constitute ‘normal behaviour’ are two different things. Birth defects too occur naturally but are precisely for this reason termed ‘defects’ or euphemistically, ‘challenges’. This does not mean that there is no humane way to deal with these, but an anomaly cannot forcibly be considered ‘normal’ because someone feels bad about it, and in fact they are not. Already there are attempts to mainstream the notion that gender identity is a social construct and not inborn, which sociological studies have clearly proven to be false, but nevertheless the claim still carries tremendous force in propaganda.

There are also claims by the lobby that wishes to see homosexuality normalised, that animals too demonstrate homosexuality. Without going into the veracity of these claims –since much of these so-called homosexual behaviours observed in animals are in fact not so at all– incest too is common in the animal world. Killing of siblings, rivals, the disabled and even parents happens in the animal kingdom. But these cannot possibly be admitted in the scope of discussions on human behaviour. Drawing comparisons with the animal world, the creatures of instinct who do not act on conscious choice, in determining the normative and acceptable for human beings are tenuous at best.

One of the immediate consequences of decriminalisation is going to be the demand for admission into professional areas which are all-male preserves, prime example being the military. With its strict order and hierarchy this leads to a potential situation of simulated homosexuality which could be disruptive of institutions. While we concede that law should render the position of homosexuals secure from molestation, we must also realise that there would be grooming and stalking by predatory homosexuals. It should also be a right for heterosexuals to be expressly informed when they would have to deal with a person of homosexual orientation, especially involving close confines and physical proximity (like hostels, prisons, military, etc) and as a return of courtesy for all that advocacy of free choice, refuse to associate with them. To force them against their grain and instinctual self-preservation is a violation of their human rights and a case of reverse tyranny.

The decision of decriminalisation hinges majorly on the singular point of ‘consent’. But it is only too well-known from our experience of heterosexual encounters that consent is highly fluid. It can be manufactured in inequitable power situations (in private, public and professional spheres, and at work, home and institutional set-ups) not only through threat, but also through incentives and conditioning, which make the consensual nature of an act difficult to ascertain. E.g. there is a good possibility that an individual who has been brought up being sexually abused from childhood by someone he/she is dependent on emotionally and for sustenance, will consent to being in a relationship with the abuser. There have been several cases where underaged children wanted to marry and continue in a sexual relationship with parent/guardians/adult husbands and such psychological dependence does not change even in adulthood. While these are cases from the ‘heterosexual world’, these examples illustrate why consent alone is inadequate in determining legitimacy of actions. Consent cannot fully explain every issue of morality and leaves things like incest and paedophilia in the grey area. Several yardsticks of morality itself are arbitrary: e.g. the legal age of majority and outlawing of polygamy/polyandry.

In the matter of Arif Jafar versus Union of India, the petitioner claimed having been tortured, abused and jailed for 47 days for his work in –as described by him– educating the LGBT+ community about safe sex. The charge against him under Section 377 was however of “conspiracy to promote homosexuality”. In the absence of clear penal provision that outlaws homosexuality, it is difficult to clearly determine what constitutes legal and illegal act. As alleged in this case, boosterism for homoeroticism, building an air of permissiveness about it under the guise of sex-education, is a very realistic possibility. It is well known that homosexuality is not always innate but can be fostered through promotion of fads and in a specific environment, e.g. church cloisters and the fashion industry.

The gay rights lobby in the West has been pushing for special status as a ‘minority group’ –and therefore the term “LGBT community” is something to be wary of– as an acceptable, alternative lifestyle choice and the right to promote and propagate it. We have to apply utmost discretion in dealing with these thrusts and arrive at a clarity on the prospect we hold in our minds about the future shape of our society.

The most disturbing of these is activism to push the choice of homosexuals to define the norms of society. Therefore there is a move to distort a fundamentally heterosexual institution like marriage to accommodate homosexual choices. As of 2017, a draft of a Uniform Civil Code that would legalise same-sex marriage nationwide has been proposed. While in several Western countries there are other attendant factors behind these demands: viz. that marriage is tied with tax benefits, social security, medicare and numerous other social benefits, it serves absolutely no purpose pushing for these in India. The activism does not make sense even in these Western countries, since it should actually be demeaning to homosexuals as individuals to have their due human rights acknowledged and their social acceptability contingent upon admittance to a heterosexual institution. There is no reason these rights should be denied to them in the absence of a marriage.

This push for ‘gay marriage’ has led to a trend among gay sex activists to try and ennoble a mere sexual choice –since that is the only aspect which sets them apart from other male to male bonds– as ‘love’[1]. Quite simply, it is carnal urge seeking gratification by alternative means, no “love”. Admittedly, there are many marriages which are not based on love either but that is not the premise of marriage, which was in design and spirit meant as formalisation and sanctification of the union between a man and a woman. No marriage vow speaks of guarantee of love. Moreover, the nature of human attachment is varied and inscrutable, and the claim of ‘love’ cannot constitute the criteria for suitability for marriage. Every bond, every relationship does not qualify for marriage, because it was designed with a specific purpose in mind. Apart from progeny and determination of lineage –which are not absolute requirements but form a vital aspect thereof– it was meant to provide a stable institution for nurturing emotionally healthy and secure children into individuals, the basic unit on which a family is built. If this were not the case then procreation could have continued in societies outside the marital bond too. This clearly is not the case, in any society! There is not a single human society, not even the most primitive communities that do not have marriage between man and woman as the fundamental institution for bearing and rearing children and social stability, something that gay unions do not bring because they are primarily meant as recognition to an alternate sexual orientation, not any of the other values represented in marriage.

Arguably both aspects, that of child-rearing and commitment may be used to buttress claims of suitability for ‘homosexual marriage’ but are actually fallacious. Children are born of heterosexual unions and that that constitutes natural parentage. Although life situations do sometimes cause children to be cared by all-female/single female, and less often all-male/single male families or institutions, these do retain heterosexual focus, in the sense that children are raised as natural heterosexual individuals. This natural perception of a natural heterosexual child would be altered if he/she is brought up to view homosexual behaviour/relationships as normal, bound to be emotionally-sexually confused individuals, quite evidently not a healthy family model.

The demand for right to adopt is the corollary to the demand for recognition of gay/lesbian couples ‘marriages’ but is inadmissible owing to several reasons. Even if one were persuaded to ignore the argument of inducement into homoeroticism through association, the law considers the custodial right of the mother as primary parent in cases of broken marriages. This by no means implies that all females are perfect parents nor does it devalue the role of a male parent. But there are several unpleasant precedents forming the overwhelming justification for this unequivocal preference for the female parent in most cultures. With this background, the move of granting adoption rights to gay couples –where a female parent is completely absent and prospective males are not natural parents– is wholly erroneous and would be succumbing to an ideological notion overriding considerations of child welfare. The natural offspring of gays or those begotten through artificial means too cannot completely be entrusted in the care of all male couples. Going by experience, this would be an injudicious treatment of a complicated and vital issue. What wrong has a ‘straight’, well-meaning, mentally sound, natural male parent done then that he is considered secondary in terms of custodial rights over his own children? Single males are not allowed by law to adopt. Why should homosexuals receive preferential treatment? Even in case of lesbian couples, there can be severe psychological impairment resulting in maladjusted individuals unable to integrate into normal social/sexual relationships with males.

According to former attorney general Mukul Rohatgi, one of the senior lawyers fighting the case for decriminalisation: the court had to show the world India is a “diverse society” and that we will not tolerate these Victorian models of behaviour any more … an opportunity “to show the liberal world, the Western world, that India is not so far behind … It would be a signal that India respects human rights, no matter what minority you belong to. The aim is that these people, who have been suffering, will be able to stand shoulder to shoulder with the rest of society.”

It is well that a quirk of nature is not criminalised by statute any longer. But if indeed India has the distinction of having been the most righteous and humane society ruled by considerations of ethicality instead of tyrannical religious diktats, what ground is there for such diffidence to show anything to ‘the liberal world’ who have neither figured out their own course nor end?

It would make far more sense to give credence to the existing common sense of rectitude which may in the present context abide in conservatism, but are by no means cruel and oppressive in their outlook towards dysfunctional individuals. Present-day conservatism around heterosexual acts is also inconsistent with the highly developed ancient Indian society. We are not close to “celebrating” sexuality of heterosexuals today either, have not yet successfully addressed the various mores surrounding it. Why must we celebrate homosexuality?

Indian transgenders perform at a seminar for the transgender community in Mumbai on October 3, 2013 (Source: Getty Images)

Why must any mental attitude, this way or that, be imposed? The evolution towards a just society happens in natural course, as long as it is a free-thinking ecosystem, without the indiscriminate advocacy of ill-founded, short-sighted, untested ideas, the complete sociological implications of which for the future yet remain in indeterminate area. What also ought to be examined is the motivations through which activism is born. It is quite clear that the gay rights movement does not end with decriminalisation. Along the lines of the Western countries where limitless liberalism has wrested control of the discourse, they pretty much demand every right which forms the common aspirational index of heterosexuals. This is unlike the wisdom of ancient India where their professions were limited with sights on the bearing their sexuality would have on the normal course of society, which in turn was fashioned on the idea of highest common good, and not intemperate individual rights.

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Author: Smita Mukerji

Published: Sep 09, 2018

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[1] “Homosexual love is unselfish. Just that they do not want to procreate” (Chief Justice Leila Seth, 2013 writing on the Suresh Koushal Judgement)