Naturalising a queer concern

Retrieving alternate sexuality from the draconian Section 377 of IPC that classifies homosexuality as an "unnatural offence" (which has its roots in the colonial Buggery Act of 1533 which criminalised sexual activities "against the order of nature") has been long overdue. While India debates, demonstrates, and judges homosexuality, the UK has seen remarkable support coming in for LGBTQ community since the turn of 21st century. It deserves to be emphasised that LGBT individuals openly serve in Her Majesty's Armed Forces besides having the same legal rights as other citizens. Beyond this contrast and instance of exemplary progress, it must be clarified what might possibly constitute unnatural sex – debatably but conclusively, rape; even IVF and artificial insemination are (scientific and progressive) methods of unnatural sex. Homosexuality is a variation, not an aberration, as Justice Indu Malhotra asserted.

There is no moral or legal ground to incriminate ones' exercise of free will. Regarding homosexuality as an offence is to infringe one's right to express their self and decriminalising it is the first step to remove barriers that discriminate them and deprive them of their rightful entitlements as citizens. The aspects of Section 377 pertain not just to exercising sexual preference but also to the larger spectrum of right to life (and liberty) and the right to privacy in such relationships. Decriminalising private consensual gay sex and relationships will inevitably lead to a radical change in social patterns and outlook about the institution of marriage. If homosexuality is to be officially accepted, there is no reason to not solemnise such unions. Any bearing of this on matters of inheritance is comparable to when this issue had broken out about female children inheriting property. As established, an enforced legal status will eventually lead to social acceptance.

Notwithstanding the extent of modernisation that the Indian society likes to emulate selectively, it is commonly not encouraged that an adult exclusively chooses their partner. Further, any deviance from social or family convention is regarded with doubt that borders on disagreement; and acceptance of the final result of choosing one's partner seldom comes readily. Drawing very validly from the Hadiya case (March 2018 judgement; when a Hindu girl from Kerala converted to Islam and chose to marry a Muslim man out of her own free will), Justice Chandrachud observed that neither the State nor one's parents can influence an adult's choice of partner. That would amount to violation of one's fundamental right to privacy. When it is a matter of difficulty in accepting individuals who make their own choices, the aspect of sexual orientation becomes an extraordinary problem only due to social conditioning.

The gay community in India reflects the general condition the marginalised and the ostracised such as those surviving the trauma of parental rejection and subsequent societal exclusion, sex workers and transgenders who can monetarily afford their rehabilitation but do not find acceptance in the larger society and hence have no way out of their misery which they are compelled to accept, even those who are socio-economically backward but foster ambitions to rise above their limiting conditions. Support to gay community can pave the way for due upliftment of other marginalised communities. Awareness and informed acceptance of human sexuality have still a long way to go in India. A generation raised with basic sex education is very unlikely to harbour resentment against the queer.

Genuine homosexuality will naturally seem unnatural in a country where socially validated common heterosexual concerns are broached in hush tones and a certain qualification in the status of the individual (woman in particular) is expected for validating bringing up such matters. In these haphazardly changing times, the concern for reproduction by a married woman of a certain 'late' age is justified but a single woman of the same 'late' age seeking a sperm donor to independently start a family is declared being a complex kind of crazy, almost diseased. An eminent Indian journalist's opinion for The Washington Post bears this headline: "The shameful cowardice of India's politicians on gay rights". To be clear about our easy-paced social modernisation, society and politics are very cleverly delinked to suit electoral and populist agendas. Social concerns are never quite a political concern.

Indeed, it is time we realise the necessity to extend constitutional rights to all citizens, irrespective of gender and sexual orientation. It can be debated endlessly whether homosexuality is a conscious choice or an innate inclination beyond choice but it must be reiterated that people of alternate sexuality and preferences are equal citizens who must not be discriminated. The judicial integrity at the Apex level has once again overturned the 'judgements' that have belittled the humanity of some humans. The Supreme Court is expected to be the guardian of social justice.

(The author is Senior Copy Editor with Millennium Post. The views expressed are strictly personal)