Despite being reluctant to get involved in a ‘‘media trial’’ on a case that has barely reached its admission level in the Delhi High Court—with the Government yet to clarify its stand—I feel compelled to respond to R Raj Rao’s article Where are the homosexuals? (Op-Ed, September 2) to clarify some fundamentals regarding the demand for removal or modification of Section 377 of the IPC. Though this demand is being made to appear as a campaign for gay rights, an acceptance of its premise actually poses a greater danger for the homosexual cause than Section 377 ever did or could. This demand has been made on the grounds of HIV/AIDS prevention, the case having been filed by an NGO who defines itself as ‘‘working in the field of HIV/AIDS prevention, including work among Men who have Sex with Men (MSMs), amongst others, as this population segment is extremely vulnerable to contracting HIV/AIDS’’. Homosexuals are being misrepresented, and Section 377 is being misrepresented, turning this into an effort to mislead the judiciary, the public, and more significantly homosexuals themselves. The oft-repeated allusions to HIV/AIDS & public health while talking about homosexuality will fundamentally make people wary of homosexuals. There are far-reaching implications of depicting already marginalised groups as being at ‘high risk for HIV/AIDS’. We have many instances where ‘‘HIV high risk’’ labels have stuck to communities, leading to their stigmatisation. Particularly since gays do not ‘‘operate’’ from visible, identifiable areas, it’s difficult to understand why a ‘‘high risk group’’ approach is being promoted as far as they are concerned. Since there is no saying who prefers what in the privacy of their bedrooms, a more appropriate approach would be to incorporate safety messages for all kinds of sex within the HIV/AIDS prevention material meant for the public. After all, do HIV/AIDS prevention agencies recognise a ‘non-vulnerable group’? If, indeed, homosexual acts do make a person ‘‘extremely vulnerable to contracting HIV/AIDS’’ as the NGO in this case claims, it might as easily be argued that Section 377 actually helps prevent HIV/AIDS by discouraging rampant homosexuality. The other issue we need to examine is whether Section 377 is an ‘‘anti-gay’’ law. Section 377 itself refers to ‘‘whosoever has carnal intercourse against the order of nature with any man, woman or animal’’. It is incorrect to assume that this refers to the private consensual same sex activities—unless there is evidence that the section is being interpreted and used as such by the law. This law actually does not anywhere refer to ‘‘private’’ sexual acts, and like any other law, does not/cannot come into operation unless there is a complainant or witness. As it states, ‘‘there must be distinct evidence of the time when, the place where, and the person with whom he committed the offence. If these facts cannot be proved, the accused cannot be convicted under this section, though there may be unimpugnable evidence of the fact that the accused was a habitual sodomite’’. It also suggests the necessity of medical evidence. Hence it has adequate safeguards against being applied to persecute acts of private consensual sex. So what does Section 377 address? To interpret this law, we need to understand what constitutes a ‘‘natural’’ or ‘‘unnatural act’’. Among the vast range of human sexual preferences, there are also what we call ‘perversions’ practiced between consenting adults, such as sadism and masochism, and fetishism. There are also instances of animal and child sexual abuse addressed by this section. Correctly interpreted, Section 377 provides a safeguard by socially and legally discouraging sexual perversions. The argument that it infringes the ‘‘right to privacy’’ is contradicted by efforts to turn homosexual activities into a public issue. After all the visible grouping of people in the name of sexual orientation is unnecessary if it concerns matters of ‘‘private consensual adult sex’’, but is necessitated only if there is an intention towards sex work. I would go as far as saying that HIV/AIDS is being used in utter disregard of genuine gay interests, only to promote and justify the ‘‘institutionalizing’’ of homosexual activity for dubious ends. There is a very active international sex mafia that has been attempting for the last one decade to get the sex industry legalised in this country—and Section 377 is one of the biggest stumbling blocks in their path. Most of the problems being mentioned are neither caused by, nor fall under the preview of, nor can be solved by addressing Section 377. An example is the demand for freedom and legal sanction for MSMs while maintaining wives (‘MSMs’ are differentiated from ‘homosexuals’ as men who also choose to have wives or heterosexual relations while occasionally choosing to have sex with men). Surely this is an issue that is to be addressed in the light of a conflict between sexual orientation and social orientation—since it questions the very foundations of structures such as marriage and family. Can we preach fidelity and abstinence for one section of society while demanding rights for MSMs? As Rao states in his article, a large part of homosexuality also arises due to ‘‘young unemployed and under-employed men finding male prostitution an easy means of livelihood’’ and ‘‘social segregation of the sexes, cramped living conditions etc.’’ Surely these are to be addressed as socio-economic problems unrelated to Section 377? It is dangerous to suggest that homosexuals ought to dismiss ‘‘public morality’’ as ‘‘hypocritical’’ or ‘‘myopic’’. Adultery, obscenity, trafficking of minors also exist in society—no one would suggest social acceptance and legalisation of these ‘‘facts of life’’ as being a more honest approach. Morality is a pre-requisite to society. Suggesting otherwise—backed up with the misleading notion that morality is antiquated and the product of one particular law, amounts to misleading and provoking gays into taking anti-social positions which will only lead to their isolation. In all this, surely the award for the worst argument goes to the appeal to vote bank politics—instigating the government to change a law because homosexuals constitute one-sixth of the population! Are gays now to be organised into a political force, voting on grounds of ‘‘sexual preference’’? What then happens to all the long drawn arguments about privacy? (The writer is with the NGO Jackindia)
