The Union government’s stand on a petition in the Delhi High Court challenging section 377 of the Indian Penal Code — which criminalises homosexuality — appears to be on shaky ground. The provision, with its Biblical overtones, came into the Indian statute books through enactment by the British Parliament in 1872!Judgements as to the sexual acts that would be classified as offences under the section are replete with archaic references to the ‘‘Sin of Gomorrah being no less carnal intercourse than the Sin of Sodom’’.At the best of times the link between societal disapproval and the prevailing law is not easy to ascertain. In a society riven by divisions of class, gender and caste, to put forth societal disapproval as the reason to oppose legalising of homosexuality is strange.Phrases like ‘‘society disapproves of it’’ are generally used to buttress prejudices. They hardly represent legal arguments. Barring a direction to hold a referendum on the issue, such issues can hardly be adjudicated upon by courts. Courts are concerned with law and not conducting opinion polls.To use the lack of universal acceptance of sexual preference as a plank to oppose homosexuality brings into focus the relation between law and values prevalent in a society. In a society that is unequal, should the right to equality not be postulated as fundamental?The logic of ‘‘universal acceptance’’ as a sine qua non for law to advance would inevitably lead to the conclusion that the abolition of untouchability was premature, lacking universal acceptance.The reduction of the dialectical interplay of law, society, legal norms and social norms to a linear paradigm of ‘‘universal acceptance’’ and ‘‘societal approval’’ could impact social reform legislation on child marriage or pre-natal sex determination.The ‘‘acceptance/approval’’ thesis also betrays a lack of understanding of the dominant norm in society. The dominant norm does not mean that only the dominant sections share belief in the norm. The dominant norm occupies all space leaving no room for the subaltern.Heterosexuality, with its constricting of the fluidity and wide range of sexuality, is probably the most dominant norm of them all.The tremendous resistance to acceptance of the simple fact that people are gay, lesbian or bisexual — just as a certain percentage of people are left-handed, with no issues of morality at stake — indicates the deep roots of the heterosexual norm.In fact ‘‘Unnatural offences’’, the title of section 377, and the use of the phrase ‘‘carnal intercourse against the order of nature’’ bring us back to the same basic issue.In times when governments are vigorously pushing condoms and injectable contraceptives, to bring in the binary of ‘‘natural’’ and ‘‘unnatural’’ in order to criminalise an act is an irony. Isn’t contraception too ‘‘unnatural’’, as it stops ‘‘natural’’ procreation?All this leads to the question whether acts that are deviations from ‘‘approved’’ dominant norms should be penalised by the law. Generally a person is punished for acts that cause harm to others, say murder or theft. Certain statutorily created offences — like possession of alcohol in Gujarat — fall within the category of ‘‘victimless’’ crimes. The rationale is they are considered vices that may lead to crimes.As the Union government’s affidavit puts it, removal of homosexuality as a crime would open the ‘‘floodgates of delinquent behaviour and be construed as giving unbridled licence for the same’’. This is a remarkable statement. There is, after all, no scientific data to show that homosexual activity leads to more crime!The author is a SC lawyer
