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A Love Created by a Lesser God: India’s Laws Punish Homosexuals as Criminals October 2, 2008

Posted by nitinkarani in English, Online/New Media, Section 377.
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The Women’s International Perspective

September 30, 2008

A Love Created by a Lesser God:
India’s Laws Punish Homosexuals as Criminals

Parul Sharma
by Parul Sharma
– Sweden –
As it is, love can either be a blessing or a poison, depending on various aspects. But when love is felt for someone of the same sex, in some cultures, that love becomes a living hell – or simply a love created by a lesser God. Yes, a lesser God – not as strong and creative as the God we are used to. This lesser God created love but forgot to do the ample marketing needed to share the selling points of this particular love, such as poetry, music and literature. 

Love knows no boundaries, but maybe our minds do. Otherwise why would I have asked my friend, Are you sure this is love and not just a greater friendship?


• Though homosexuality is accepted in many societies, Indian culture and law treats them as criminals. Photograph byMushi. •

A few weeks ago someone close to me fell in love. This girl, my friend, fell in love with another woman. She refuses to be called a homosexual – after having relationships with men she fell in love with another woman for the first time in her life. She says she is not bisexual, just in love. But it is a complicated love, a complicated way of loving, and I am not referring to whether this love of hers is reciprocal or not. No, it is complicated because even I got stuck.I am a human rights lawyer who believes that people should stand up for their rights, will, dreams and wishes in all situations. Now when a person close to me became a “victim” of this lesser love, I could not initially find words to advise her. But it got me thinking again about the trauma people around the world suffer from. In some cultures, women and men are forced into heterosexual marriages to cure what their friends and families call “psychological issues,” but which is actually a matter of a love created by a lesser God. My confusion? This dilemma took place in Sweden – a liberal, modern and educated country. It makes me wonder, if this confusion is so great amongst people living on “this side of the world,” what is the situation in countries where such love is actually a crime?

Social stigma and legality in India are forcing millions of people to suppress their natural emotions, wishes and dreams; socially constructed systems and perceptions that deem what is “normal and natural” are being imposed on society. Consider this: Indian law allows sentences from 10 years to life imprisonment for people caught indulging in the kinds of sexual relations that it identifies as being “against the order of nature” – the result of a 150 year old law. William Shakespeare’s famous quote – “They do not love that do not show their love” – is another miscalculation of this love created by a lesser God, because how is one to show and express the joys of love if the love one feels is not considered a natural emotion?

Homosexuals have been detained in clinics in countries like India and subjected to treatment against their will. The NAZ Foundation India Trust, an NGO, filed a petition with the National Human Rights Commission of India (NHRC) regarding a case in which a man was forcefully subjected to shock therapy. The NHRC declined to take the case, as gay and lesbian rights were not under its purview. The Naz Foundation has challenged the constitutionality of Section 377 of the Indian Penal Code in the Delhi High Court. The section describes homosexual intercourse as “unnatural sex.” The government dithered for two years before it filed its response and only did so after immense pressure from civil society groups and several judicial strictures. While its stalling is understandable as a tactic to eliminate another problematic litigation in the half-a-million or so cases clogging the Indian judiciary, the substance of its reply brings to light the country’s cultural straitjacket.

The government reply states: 

“In fact, the purpose of this Section 377 ipc is to provide a healthy environment in the society by criminalising unnatural sexual activities against the order of nature… If this provision is taken out of the statute book, a public display of such affection would, at the most, attract charges of indecent exposure which carry a lesser jail sentence than the existing imprisonment for life or imprisonment of 10 years and fine. While the government cannot police morality, in a civil society, criminal law has to express and reflect public morality and concerns about harm to the society at large. If this is not observed, whatever little respect of law is left would disappear, as law would have lost its legitimacy.”

 

The government maintains that if “unnatural sex” is not prohibited, the normal social order would break down. To the government, issues relating to sexual minorities are not Indian, but something which only happens in the West.

To me, the right to life and livelihood is the most inherent right a person is born with. Whenever society forces a human being to comply with something that is actually killing a natural desire – the desire to share, love and be in love – the right to life and livelihood is immediately violated. In terms of civil laws, the entire scope of benefits, which flow out of the institution of marriage, are heterosexually ordered. There is no space whatsoever in an Indian family to express a non-heterosexual alternative. In traditional India, where marriage is life’s most important event and no family is complete without children and grandchildren, homosexuality is rarely acknowledged, let alone accepted.

Marriage under all personal laws and the Special Marriage Act in India are defined as an arrangement between two members of the opposite sex. This has caused particular violence to lesbian women in India who have forcefully articulated their desire to have their relationship validated by marriage. There have been ten documented cases of lesbian marriages since 1988, all of which were challenged.

The police, under the Criminal Procedure Code, have the power to arrest on suspicion that a crime is going to be committed. It is this unsighted power which is used to harass and violate the homosexual population who frequent public parks. There are documented cases of police abuse, including illegal detention, extortion, abuse and intimidation of the homosexual population. It discourages reporting of male rape, and thus encourages such rape, often by police. In sum, it disrupts the social existence of all “same sex persons,” erodes their dignity and self-respect, and reduces them to a sub-human level of existence. The silence and shame around the issue of homosexuality is so great and the fear of being isolated and discriminated so prevalent that a lot of those who are caught by the police prefer to pay a fine rather than fight for their human rights. Almost none of the cases go to court with the person being let go after he has paid off the police officer. Human rights abuses are thereby legitimized by law.

A law this unrealistic creates a stigmatized identity of the “homosexual as criminal.” Instead of breaking down discriminating social structures, the media encourages this antiquated value system by legitimizing the legal notion of “unnatural offense” and propagating such notions of homosexuals as “psychopaths, retarded and dangerous.” I have always wished that in Bollywood’s efforts to ape Hollywood, the film industry would figure out that it has the power to convey and correct misconstrued notions on difficult issues like homosexuality. But the film industry is just as disconnected from reality as the politicians of this nation. Hindi cinema through its launch of the homophobic film Girlfriend in 2004 – a violent modern depiction of lesbian love – has shown that even otherwise liberal Bollywood is not ready to discuss homosexuality. And with an education system where sex education is still taboo, it is unrealistic to even talk about introducing the concept of homosexuality as something normal.

Given all the stigma, the discrimination, the hatred, the government’s ignorance, the unrealistic laws and an old fashioned education system, how do we make this love created by a lesser God less complicated to people – people like myself, who constantly claim that it’s just love, a deep affection for another human being, and that’s all. Still, when this love appears on my doorstep, even I get confused. Where love should be effortless, it instead becomes a curse, all because of the boundaries of the mind. I wish that every person in love could follow Shakespeare’s words and even if the love is not mutual, one could rejoice in the sweet memories that love brings – like when I pass a particular kebab-place here in Stockholm, my whole heart rejoices. Well, that’s another story for another day.

In the name of love,
Parul Sharma

About the Author
Parul Sharma is a human rights lawyer and activist based in Stockholm, Sweden. Parul has written several articles on the rights of children and women and victims of crime. Parul is the author of the book Right to Life; the pluralism of human existence, released by India Research Press in April 2007. For the last few years, Parul has been working on issues related to corporate social responsibility with Swedish companies investing in emerging markets.

Visit her website A Seachange to learn about her initiative to inspire change “based on voluntarism and the power of each individual to make a difference.”

 

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