The criminalisation of homosexuality

The decision by the Indian Supreme Court on 11 Dec 2013 to uphold the constitutional validity of Sec 377 of the Indian Penal Code – and thus once again criminalise consensual homosexual acts -  has reopened the debate in India and elsewhere.

The judgement overturned a 2009 decision of the Delhi High Court that Sec. 377 of the Indian Penal Code was discriminatory against the gay community. It was for Parliament to decide, the country's highest court said, not for judges to make the law. Surprisingly for a Court that has taken an activist position on many other issues, on this question it decided to go conservative. 

Sec 377 of the IPC violates an important liberal principle of law making and for that reason alone it needs urgently to be repealed.

Law making

We need laws in order to regulate society and the economy. These laws are broadly of two sorts, they are either restrictive in some way, i.e they proscribe certain acts and activities that we might want to do; or they place a duty on us to act in a certain way under a given set of circumstances. All restrictive laws – don’t drink and drive, don’t assault someone and so on – inherently interfere with our personal liberties - our freedom to go about our lives as we see fit. Two essential criteria for a restrictive law therefore are: 1) We must be satisfied that any personal liberty that it constrains is justified by the protection it affords to someone else’s rights. As a corollary, no individual liberty should be infringed by a law unless the exercise of that liberty hurts or harms someone else or infringes another's legitimate right.  2) that by making the law and by the process of implementing it there is not likely to be more harm than good. Personal prejudice has no place in deciding which laws to enact.  

Does Sec 377 measure up?

Sec 377 fails on both counts. It infringes the rights of homosexuals in a dramatic manner by  making  it a criminal act to have consensual sex. But does it meet the first criterion? Does it protect someone else’s rights? Clearly so long as same sex relationships are both consensual and confined to the privacy of the bedroom, it is hard to see how anyone’s rights are infringed. Right wing religious groups that appealed to the Supreme Court would argue that they are offended by what they regard as unnatural sex.

This is a fundamentally flawed argument: there is no such thing as the right not to be offended.  So long as the act that offends takes place in the privacy of someone’s bedroom then any offence taken is entirely in the mind of those outside it. There is good reason why it would be dangerous to accept a right not to be offended by someone else’s private behaviour as a basis of state enforced legislative or executive action. Each of us has his or her own set of prejudices and while we are free to hold those views we have no right to impose them on others.  If this principle was held firmly then we wouldn’t have to give in to illiberal demands to ban books or films just because some group or other decided to take offence when they had both the choice and the right to ignore whatever it was that so offended them.

The second criterion is more nuanced. If there were public benefit or some societal good to emerge from a law that restricts individual rights and freedoms then there is an argument to be made for such a law. Legislation aimed at curbing smoking for example, or a tax that discourages alcohol or fatty food consumption fall into this category.

But in the case of Sec 377, the overwhelming evidence is that a law that criminalises consensual homosexual acts actually causes a great deal of harm to society as a whole. Across India some 50 million people will be denied the opportunity to live their lives as they wish. Their sexual lives will be driven underground. They will have to pretend to be something they are not, subject to arbitrary persecution and exploitation by the police, marry against their will an innocent person of the opposite gender simply to keep up the pretense, and lead a life a fear, denial and despair. 

And there is a further twist that is peculiar to the Indian context. The fact that our police and criminal justice system are both inept and corrupt, the law is often used to threaten, harass, persecute and exploit the people. Such malafide action is helped by the fact that an allegation of engaging in 'unnatural sexual acts'  is difficult to disprove.    

Simply put Sec. 377 infringes personal liberties and causes harm to wider society. The activity that Sec 377 proscribes - consensual homosexual acts in no way harms or hurts any third party, not does it impinge upon any right of any other person. Any offense taken by unconnected people is based on a personal prejudice that they should deal with without recourse to the law.  Denying freedom to some people because of a baseless prejudice held by a vocal segment of society is a step nearer to the state pandering to bigotry.

India’s Parliament should act to free its people from a law that has been overturned in the country that introduced it 152 years ago when it ruled India as its colony.