By Sheikh Khurshid Alam,
The decriminalization of Section 377 by the Delhi High Court in the Naz Foundation case had drawn mixed reactions in 2010 across all over India. For some it was a ray of hope towards a life free from constant fear of being pushed behind the bars and for some it was another opportunity to get into the limelight by joining protest marches against homosexuality, gay marriages and moral corruption in society.
A year earlier, in 2009, my team from Department of law, University of Calcutta had participated in the Moot Court competition organized by Jamia Millia Islamia, New Delhi on the same burning topic of Section 377.
Honestly speaking, I had also joined many protest marches and demonstrations against the Delhi High Court’s Judgement and even written against the evil of homosexuality.
However, my view regarding homosexuality is the same today as it was in 2009 but today I am in support of decriminalization of Section 377.
Section 377 (Unnatural offences) of the I.P.C, 1860 states that “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.”
All India Muslim Personal Law Board (AIMPLB) is in the forefront along with other organisations in opposing the decriminalization of Section 377 and I fail to understand the rationale behind it. There is no direct nexus between the decriminalization of Section 377 and moral corruption of the society. The relevant issue is that why should the State have the right to interfere with what is going on inside the room between consenting adults? Do Muslims believe that their struggles against the decriminalization of Section 377 going to make their society morally sound?
I differ from the stand of many Muslims and Muslim Organizations regarding their opinion and struggle to get a favorable judgement of criminalizing Section 377 from the Supreme Court, where the matter is pending.
I, as a Muslim am not able to agree with them because of my following observations;
a) “O you who believe! Avoid much suspicion. Indeed some suspicions are sins. AND SPY NOT [on others], neither backbite one another…” (Surah Hujurat, Verse 12)
IS NOT SECTION 377 AGAINST THE SPIRIT OF THIS QURANIC VERSE?
b) “…One of the most important principles of the laws established by Omar was that all the laws were based on reason and equity…” [Allama Shibli Nu’mani, Al-Farooq]
IS NOT SECTION 377 DEVOID OF REASON AND EQUITY?
c) “…The Islamic state will not interfere with such laws and customs of its non-Muslim subjects as have found general acceptance among them…” [Abdur Rahim, Muhammadan Jurisprudence, p.59]
“On this principle the Indian Sovereigns did not interfere with the Hindu customs of widow-burning (Sati), polyandry, dedication of girls in temples (Devdasi), etc.” [Wahed Hussain, Administration of Justice during Muslim Rule in India, 1934]
Former Delhi High Court Justice AP Shah, in his Ninth Tarkunde Memorial Lecture on Section 377 said “…This provision was challenged on constitutional grounds, and posed some very stark questions to us at the Delhi High Court – Why should someone’s dignity and ability be judged by his or her sexual preference? Why should someone’s fundamental life choices be conditioned by other people’s prejudice, ignorance and stigmatization? Why should public health be compromised by an archaic and pedantic notion of public morality? And why should a sizeable population of Indians be deemed criminals in the eyes of the law, simply for accepting who they are?”
The conservative number of LGBTQ persons is about 2 percent. This is greater than the number of Sikhs, Buddhists, Jains or Parsis in India, and about 0.3 percent less than Christians in the country.
WHEN POLYANDRY, SATI, DEVDASI ETC COULD BE TOLERATED IN ANCIENT INDIA BY MUSLIM SOVEREIGNS THEN WHY CAN’T HOMOSEXUALITY BE TOLERATED IN MODERN INDIA BY MUSLIM ORGANIZATIONS?
Decriminalization of Section 377 does not mean that people will start having unnatural sexual intercourse on the roads and public places. The Indian laws are still sufficient to curb the immoral activities. No matter how harsh the law becomes if the society is not conscious of its responsibilities, nothing can be achieved. It is true that law makes a society but it is equally true that society makes law.
The time, energy and money which are being spent on the struggle to protest against the decriminalization of Section 377 could be better used to promote harmonious living in a plural society like India. Decriminalization of Section 377 is neither an attack on the Personal Laws nor will it lead to much anticipated ‘end of the world’ but, yes, if the State becomes the Big Boss to the citizens then surely there is going to be more hostilities towards the Minorities and then they cannot cry foul.
(Sheikh Khurshid Alam is pursuing LL.M from Aliah University, Kolkata. )