Mixed-up Hazards October 29, 2008Posted by nitinkarani in Section 377, Times of India.
TOI LEADER ARTICLE: Mixed-up Hazards
29 Oct 2008, 0000 hrs IST, Bachi Karkaria
The petitioners have sought to ‘read down’ Section 377 of the IPC so that consenting adults are exempt from its draconian provisions, while minors and the non-consenting remain within its vital protection.
The health minister has wisely sought a similar amendment to Section 377, on the impeccable argument that decriminalising homosexuality will help staunch AIDS. The stigma drives homosexuality underground, and denies access to preventives, care and treatment.
Of course, gay rights go way beyond HIV-AIDS, but, as indisputably, the pandemic has further vitiated public opinion against this vibrant community. To the age-old intolerance of any deviation from the norm has been added a fearful disease, making the homosexual doubly reviled, and bestowing an extra late-20th-century sting on Section 377’s Victorian lash.
This 1860 statute was drafted by Lord Macaulay, whom we must otherwise thank for the education of us natives. We keep emphasising that new laws alone don’t change social attitudes, but no one can deny that existing ones legitimise prejudice.
Unfortunately the home and law ministries want to retain Section 377 in its entirety, continuing to see homosexuality through the keyhole of criminal immorality. The health ministry has a completely different vantage point, and looks at the homosexual through the prism of HIV-AIDS, not as its dangerous vector, but as an essential part of its solution. According to NACO, the GLBT (gay, lesbian, bisexual & transsexual) community numbers 25 lakh, and anyone whose head is not habitually in the sand knows it is a gross underestimate.
They have as much right as the vulnerable heterosexual to the messages and means of safe sex within their own genetically ordained orientation.
During the hearing which began on September 26, Chief Justice A P Shah and Justice S Muralidhar of the Delhi high court have constantly pulled up the additional solicitor general of India for the irrelevance of the cases he has cited and the sheer absurdity of his remarks, but none of this has diluted the moral apoplexy with which P P Malhotra continues to damn homosexuality.
While firmly supporting the rationalisation of Section 377, this piece is not, per se, about gay rights. It is about our irrational and dangerous habit of mixing together the two very different issues of health and morality, and often co-opting law & order as well. Listen to the ASG’s choice of words on the very first day of the case’s hearing: “It (decriminalising homosexuality) may create breach of peace. If it is allowed, then the evils of AIDS and HIV would further spread and harm the people. It would lead to a big health hazard and degrade moral values of society.” He made these sweepingly unrelated connections with such pulpit-thumping fervour that one expected a fiery ball of divine wrath to descend on the courtroom and consume these satanic forces.
The virus spread unchecked because we initially pretended that it was a problem of the ‘decadent West which could never exist in upright, monogamous India’. If, even now, we get off our sanctimonious high horse, and regard it as what it intrinsically is, a health issue, the battle against it can be carried out more effectively.
Unfortunately anything involving the sexual act can never remain immune to the meddling onslaught of the moral brigade. This in itself is fundamentally irrational on two counts. One, sex is basic to both pleasure and procreation not just in humans, but across the animal kingdom. Two, one would imagine that the souped-up moralist would steer clear of anything so ‘tainting’ instead of deliberately getting entangled in its contagious embrace.
Long before HIV and homosexuality, the sex worker was the victim of this dangerous subpoenaing of health to pump up the morality ego. But now Indian brothels, like those the world over, have realised that they can most effectively tackle the occupational hazard of AIDS when they let in the doctor and keep out the self-appointed emissaries of salvation.
Sexuality, AIDS and morality constitute our Bermuda triangle, a treacherous patch for the ship of state. The only hope is to keep morality and health issues in their own watertight compartments. There are enough legitimate crimes for the home ministry to concern itself with, and almost immoral for it to squander its energies on tilting at obsolete windmills. If the health ministry could be allowed to get on with its job, we might see a larger social healing.