The state cannot legislate on a citizen’s sexual preferences (Comment)

September 29th, 2008 - 10:33 am ICT by IANS  

India’s Additional Solicitor General P. P. Malhotra, who supposedly represents the Indian government’s views on all socio-legal matters, has called gay sex “immoral and perverse.” There could not be a more egregious example of medieval obscurantism.As quoted by media reports Malhotra’s views are so fundamentally out of sync with social reality that it begs the question whether the Indian government continues to live in the 18th century while the rest of the country may have moved in to the 21st century.

“Homosexuality is a social vice and the state has the power to contain it,” he has been quoted as saying, “It (decriminalising homosexuality) may create breach of peace. If it is allowed then evils of AIDS and HIV would further spread and harm the people. It would lead to big health hazard. It would degrade moral values of the society.”

In a country of a billion people it is more than likely that such fundamentalist views are shared by a considerable number of people. However, anecdotal evidence would also suggest that a much larger number of Indians do not view homosexuality with such near religious certitude. It is understandable if some people find gay sex unsettling,but to frame the official government position in the language of a zealot is quite extraordinary.

This legal position smacks of such grave intolerance of what the state in its misguided wisdom considers immoral and perverse. The idea that the Indian state, or that matter any state, can legislate its citizens’ sexual preferences is infinitely more outrageous than what consenting adults might engage in as a matter of their sexual preferences. Homosexuality is an inherent aspect of the human experience. Any attempt to demonise and criminalise it out of reasons of religious zealotry or unfounded morality should be rejected with complete disdain.

Those who want to sit in judgment on people’s personal preferences and rush to accord the state the “power to contain it”, as the additional solicitor general put it so glibly, frequently equate pedophilia and sexual crime against male children with homosexuality. While the former has to be dealt with all the force and severity of the law of the land, the latter is a deeply personal matter between two consenting adults where the state has absolutely no role to play.

It is astonishing that over six decades after the British rule ended in India, the country still chooses to retain many of the medieval Victorian influences on its penal code. One cannot say with complete certainty but going by some historical records before India began falling prey to invasions, homosexuality was never treated with the kind of moral, legal, and religious contempt that has been experienced in modern times.

It is nobody’s case that homosexuality had been a widely accepted practice without any social censure. But equally, it was also not formally criminalised with such fervency and finality as it is now.

Consider this passage from the home ministry’s affidavit in a case being argued before the Supreme Court. “Indian society strongly disapproves of homosexuality and disapproval is strong enough to justify it being treated as a criminal offence even where consenting adults indulge in it in private. Deletion of the Section can open the flood gates of delinquent behaviour and be misconstrued as providing unbridled licence for homosexual acts,” it reportedly says.

The fact that homosexuality is viewed with such visceral hatred and is punishable with a potential life sentence ought to be a matter of national embarrassment, not to mention the fact that they should be seen as a crime at all.

Sex of any kind between two consenting adults must remain beyond any legislation as well as any legal, religious or moral jurisdiction.

(Mayank Chhaya is a Chicago-based commentator. He can be reached at

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