Sec 377: what’s religion got to do with it?

BY Jayashree B| IN Media Practice | 06/07/2009

The Delhi High Court gave a landmark ruling on 2^nd July that Section 377 of the Indian Penal Code is a violation of the fundamental rights of the individual under the Indian Constitution. The ruling was greeted with the media mayhem that usually follows any major newsbreak. The verdict in the long-running case came coincidentally just after the media covered "Gay Pride Month", with its assortment of colorful rallies and proactive statements.

The high court ruling was celebrated by rights activists and those working in health and development as a landmark and a much-needed step towards recognizing something that has existed longer than anyone could put a time to.

Soon as the verdict was out, media persons, whether by common consent or by just falling in with the rest of their crowd, immediately jumped up to get the opinions of religious leaders – across all religions, mind you they were being secular – on this "gay" issue. Predictably the responses on the judgment from this section of "leaders" were anti-culture, anti-religion or even anti-India.

On the same pages and in the same breath, we had responses from the Government, muted, unsure of what to say. Given by the track record of confusion within departments, even during the hearing of this case, this was no major surprise. However, what probably confused the powers-that-be even more was the manner in which the religious responses were immediately made available in the public space. Even if the Government had been looking at a positive response, this was irrevocable negated by the media link on religion to a judgment that had only to do with human rights – not even gay rights in particular, but human rights in general. Immediately caution and political correctness--whatever they mean-- took over.

Very simply, since when has religion been the upholder of human rights in the country? Since when have religious leaders been called in to comment on the unspeakable in "Indian culture" – what happens within the four walls of a bedroom (or sometimes even outside it?) Are religious leaders ever called in hold up human rights issues in general? The greatest movements forward in human rights have been through religious ‘reformers’ and not through the traditional followers.

If having more than one gender identity is against religion why has it been written into some of the oldest epics of the "Indian culture" like the Mahabharata? Why is it that our temple sculptures and other art forms represent the human sexuality in a manner that which today’s online social networking community hesitates to talk about? They (those artists, litterateurs, leaders an integral part of our cultural ethos) were not running away with one preconceived image of life or sex then as we are doing now.

Interestingly most media quotes with the religious response began with reactions from Muslim clerics – of course we have to keep up the western image of the conservative Muslim as well. Transgenders, incidentally follow customs and practices that are Islamic to a large extent – ascribing their loyalties to one or the other "jamaat" within their setup. Whether or not it has had religious sanction or consent over decades is a different matter, it definitely has now.

If we were to purely go by Section 377, a majority of sexually active people in this country whether hetero, homo or bisexual would have to be prosecuted and that is the fact. Whether or not homosexuality is an Indian or a Western concept, whether or not sexually promiscuity is Indian or Western, the fact is that it exists. Shutting our eyes or pretending that it doesn’t exist doesn’t help at all. The Delhi High Court is nothing but the first real public recognition of alternate sexualities. It is important in enabling us to debate, discuss and take things forward, definitely. But this is really not the time to get into religious politics and take things several steps backwards from where we have struggled to come to.

Through our work with sex workers who are female, male or transgenders we hear of many disturbing stories. Disturbing, as the sex workers – without religious or societal sanction – have no legal recourse to really turn to for the unspeakable acts their supposedly normal clients put them through or the untold violence that they face. Even if there is a case it is usually against the victims, and the clients, with the image of straight men, married to women, get away scot-free. The hurdle in work such as HIV / AIDS prevention is the inability to talk about what is considered "unnatural" under Indian Law, the inability to press charges, but now there is hope.

The Delhi High Court by recognizing "consenting" sex among those of the same gender has at least taken the feelings of people with alternate sexualities into account. In that, it is a huge step forward, recognition of things to come, a sign that it is really time we open up and speak about things under the carpet, or under the sheets.

This is where we need the media not to jump the gun. We need the media to direct the speaking point at the issue – not cloud it with what is not really the key issue here. The next time a boy or girl is molested, where there is rape or forced sex on the wife, I would really look forward to seeing how the media brings religion into the debate. If you haven’t been doing it, then please lie low on the issue and let those like Shah and Muralidhar who have the courage to articulate for human rights, take these issues forward. Let them be our spokespersons, if that is, the media will allow them to speak.