Beyond 377


Chhotebhai

Gay activists are ecstatic that the Supreme Court has finally struck down Sec 377 of the Indian Penal Code (IPC), as being ultra vires of the Constitution, basic human rights, privacy and equal treatment.

Why this ecstasy? Gay activists (which include homosexuals, lesbians and transgenders) had filed a writ petition in the Delhi High Court, seeking abolition of Sec 377 IPC. This section considers all homosexual acts (same gender) as a crime. Hence the police could arrest, prosecute, or plainly harass homosexuals. The latter therefore remained hidden for fear of police excesses. Social ostracisation is a different issue entirely, in which the law of the land has no role.

The court had merely ruled that homosexuality per se is not a “crime”, provided it is an act between adults (above 18 years of age), consensual and in private. This is solid legal logic. It has only de-criminalised such behaviour, not legitimised it. The court was actually saying that the State cannot act like a moral guardian in what is essentially a private and personal affair. We have seen enough of moral guardians and vigilantes in recent times, spewing venom on “others”.

In 2013 the Supreme Court had overruled the order of the Delhi High Court, stating that this was a matter for the Legislature to decide. But the BJP Govt did not want to get caught up in this debate, and told the Supreme Court that it would abide by its decision. It was in fact passing the buck. The Supreme Court in exasperation has now said that it could not wait any longer for the Legislature to act, and accordingly affirmed what the Delhi High Court had said earlier in 2009; decriminalising consensual homosexual acts between adults in private.

The real issue for most of us is not the legality, but the morality of homosexuality. Having spent 9 ½ years of my childhood in prestigious boarding schools, I heard sufficient “whispers”, though I did not have any direct exposure or experience of homosexuality. But I must confess that I found it repulsive and abhorrent. I could perhaps understand that young boys with an urge for sex would turn to other boys, for want of any other opportunity. I would call this a desperate sexual drive, rather than any specific sexual orientation or deviation. However, in normal circumstances, where the opposite sexes interact freely, I find it abhorrent that those of the same sex prefer themselves to the opposite sex. Nor can I stomach men dressing up as women – powder, lipstick, handbags, dresses et al. This is just my subjective opinion.

What is the traditional Christian attitude and current moral teaching on this sensitive issue? The Bible throws much light, in both the Old and New Testaments. Homosexuality between males is referred to as sodomy, named after the Biblical town of Sodom. What went wrong in Sodom, and why was it destroyed by God’s wrath?

We are told that the “people of Sodom were vicious and great sinners” (Gen 13:13). Abraham pleaded with God to spare the city if 10 righteous people were found there (cf Gen 18:32). What was their “sin”? When two angels visited Lot’s house in Sodom, the people said to Lot, “Send them out to us so that we can have intercourse with them” (Gen 19:5). Lot refused, and was evacuated before the city was destroyed. Till today nobody knows where exactly Sodom was located, though it was presumably in the locality of the Dead Sea.

Old Testament morality considered homosexuality an abominable thing. “You will not have intercourse with a man as you would with a woman. This is a hateful thing“ (Lev 18:22). The punishment is severe. “They will be put to death” (Lev 20:13). To be fair, the same punishment is awarded for incest and bestiality. Male “sacred prostitutes” were banned (cf Deut 23:17). The practice of “male sacred prostitutes” was considered shameful, though accepted in other contemporary societies (cf 1 King 14:24). Righteous kings took strong action against them. Asa, a descendent of King David and the king of Judah (911-870 BC), “drove the male prostitutes out of the country” (I King 15:12). Asa’s son, King Jehoshaphat (870-848 BC), followed in his father’s footsteps. “The few male sacred prostitutes left over from the days of his father Asa, he expelled from the country” (1 King 22:48). King Josiah (640-609 BC) “pulled down the house of the sacred male prostitutes which was in the Temple of Yahweh” (2 Kings 22:7).

New Testament writers like Sts. Peter, Paul and Jude, share the same harsh proclivity towards sexual deviation. Peter refers to the destruction of Sodom as a “warning to future sinners” (2 Pet 2:6). Paul calls it a perversion. “That is why God abandoned them to degrading passions: why their woman have exchanged natural intercourse for unnatural practices; and the men, in a similar fashion, giving up normal relations with women, are consumed with passion for each other, men doing shameful things with men and receiving in themselves due reward for their perversion” (Rom 1:26-27). Jude says that the people of Sodom “who with the same sexual immorality pursued unnatural lusts …are paying the penalty of eternal fire” (Jude 7).

Interestingly, Jesus’ own reference to Sodom, which seemed to have scarred the Jewish psyche, is somewhat more circumspect, rather than absolute. In an oblique reference he says that the disbelief of the people of Capernaum is a greater source of divine displeasure than the sins of Sodom (cf Mat 11:23-24). This is typical of Jesus’ empathy for, rather than condemnation of, sinners. He considers sins of the spirit like self-righteousness and pride as greater evils than the sins of the flesh like illicit sex or drunkenness.

Sexual morality evolves with society, which has no fixed norms. In the West there was Victorian prudism at one end, and nudity and free sex at the other. The same India that gave the world the Kama Sutra, and the erotic temples of Khajuraho, kept its women in purdah, and frowned on youngsters holding hands or walking together. Public morality is always terribly subjective.

The Catechism of the Catholic Church (CCC) promulgated by Pope John Paul II on 11/10/1992 is considered the current moral code for billions of Catholics worldwide. It has some interesting insights. It objectively states that “tradition has always declared that homosexual acts are intrinsically disordered. They are contrary to the natural law … under no circumstances can they be approved” (CCC No 2357). This is objective teaching, which is then tempered with sensitivity and pastoral concern. It says that such persons “must be accepted with respect, compassion and sensitivity. Every sign of unjust discrimination in their regard should be avoided” (CCC 2358). The Supreme Court judgement seems to have taken a leaf out of the Catechism!

However, many momentous decisions or acts have a snowballing effect. The LGBTQ activists are already talking of legalising marriage between them, and having provisions for succession and adoption. In some way has the Supreme Court opened up a Pandora’s Box? What will all this lead to? We need to see how things pan out over time.

The day of the Supreme Court judgment Fever 95 FM Radio, that many youngsters listen to, was ecstatic about the judgment and sought my opinion. I told them that this was about the legalities of the issue at hand, with certain riders, and we should not read too much into it. Thereafter the Hindustan Hindi daily also sought my opinion, together with Sikh, Muslim and Hindu leaders. Our responses appeared the next day. All of us said the same thing; that this was merely the legal aspect with which we have no quarrel. Nevertheless none of the religious leaders felt that religion permitted or encouraged homosexuality. The BJP Govt has already pressed the panic button, probably at the promptings of the RSS, that it will not permit gay marriage.

There is another spin off. What about hostel rooms, or those of seminarians and novices? Would they be considered private or public spaces? If they are treated as private places within the ambit of the Supreme Court judgment, then will any hostel warden, seminary rector or novice mistress be able to enforce discipline in their confines?

I have a small aside. Recently a nine-judge Constitution Bench of the Supreme Court had upheld the citizen’s right to privacy. The present five-judge Bench has also had recourse to the same argument, that the law cannot be a moralising force in the bedroom. What then of the dining room and kitchen? By the same logic the State has no role in what we cook and eat. It is our private business!

Hence we should cautiously welcome the decriminalisation and the need to stop discrimination. Because we disapprove of something does not necessarily mean that we condemn it. Rather than condemnation, we need to adopt Jesus’ attitude of love and concern for all. At the same time, while we do not condemn; we do not approve of or encourage such acts either.

If God in his infinite wisdom made male and female different, let us keep it at that. As the French would say, “Vive la differenz”! It would indeed be the right thing to do, if we need to go Beyond 377.

*The writer is the National President Emeritus of the All India Catholic Union

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