Shashi Tharoor, an Indian Parliamentarian, recently started a
petition that seeks to make an amendment in the section 377 of the Indian Penal Code. The section reads " whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animals 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." Tharoor argues that it impacts the LGBTQ community, and also the heterosexual couples. The campaign to seek amendment has also been sought even by the Naz Foundation. Tharoor mentions that rape and pedophilia should not be legitimised, but different forms of sexual expressions between consenting adults must be made legal. Here is the quote: Section 377 should be amended so that all consensual sex between consenting adults irrespective of gender and sexuality is legal. I have an issue with the word 'legal'.
The headline in the Petition says " Decriminalise Homosexuality". However, the content of the petition is not really about decriminalisation of homosexual practice; it is about legalisation of homosexuality practice. It is because of this inconsistency that I did not sign the petition. Let me explain further what I am saying.
It is one thing to decriminalise homosexual act; it is another thing to legalise it. This is not the case in all situations. But this is so particularly for matter involving sexuality. Let me explain the differences with examples.
In certain sates of India, beef consumption is banned. So if you consume beef in these states, you are consuming an illegal food item. And it is taken as a criminal act, and you can be jailed for that. However, fish consumption is legal. The state will not send anyone to jail for consuming fish. The government does not say that fish or cabbage or potato or tomato and so on are legalised food items. It is understood that beef consumption is an illegal act and consuming other food items like those mentioned above are legal acts. Here only two categories are employed: illegal act or legal act. The idea here is that if it is not an illegal act, then it is a legal act.
When it comes to sexuality, employing just two categories will not work. I would argue that we need three categories: illegal act (or criminal act), non illegal act ( non criminal act) and legal act. Rape is a criminal act; it is illegal. You rape, and you can go to jail. As of now homosexual act also falls in this category. You have sexual relation with a person of same sex, you can be jailed. But fornication between one adult male and one adult female is not a criminal act. Society or parents may find it unacceptable, but if it was consensual then the two individuals cannot be sent to jail. I would call this as non illegal act (or non criminal act). The third category is the sexual relation between husband and wife. This is a legal act. This third category -- marital sexual relation -- is different from the first category and the second category because it takes place within the state (or concerned authority) sanctioned institution. Marriage is a formal recognition of the union that involves authority's sanction, witnessed by friends and families and often accompanied by celebration. The couple is honoured by providing certificate of marriage. Because marriage is an institutionalised union, sexual relation within marriage cannot be equated with fornication; the legal standing between the second category and the third category has to be different. If we do not treat them differently, we are compromising with the most basic institution called family. And this is a very serious issue.
Given that family, which traditionally is composed of male-female equation, is the basic building block of a civilisation, I would not want the state to legalise same sex union. Or to put it different, I do not want same sex union to be recognised, celebrated and honoured by the state. Immanuel Kant would invoke the universalisability principle to examine the moral imperative of an action. He says that we should act on that maxim that it can be acted on universally. I would apply the maxim here like this. If everyone begins to marry the person of same sex, human species would extinct. If the state legalises same sex marriage, it would mean it recognises, celebrates and honours same sex marriage. Given that same sex marriage, if universalised, can result in the extinction of human race, the state should not recognise, celebrate and honour it.
I am okay about decriminalising homosexual act, which would mean it would no longer be placed alongside criminal act like rape; instead, it would be placed alongside non-criminal act like fornication. A liberal state would have to allow individual to exercise liberty to a great extent unless it infringes on the autonomy of other people. I may not appreciate it nor consider it right. However, a liberal state would have to allow citizens to exercise liberty, and this is different from recognising, celebrating and honouring a conduct. However, I would insist that the state should not legalise it.
When it concerns food items, the state will not dish out certificate and say that this is a legal food item. That's why if it is not illegal, it would mean that it is legal. With sexuality, the government does give certificate. Here it is about people coming together to make an institution. Here the nature of the matter is different from that of the consumption habit. And because of the nature of the matter, it requires three categories; unlike food matter that works with only two categories.
