There are certain activities which the law strives to prevent in a greater interest and will continue to do so, because law is nothing but the will of the same people it serves. The only assumption which we take here is that the law is of a country which is purist irrespective of its machinery, it only wants the good and prosperity of the population.
There are 83 countries as of now which have kept homosexuality illegal, the point is not what the numbers indicate, but even if it was one country then what could have been the reason?
Different countries have different economic and cultural setup. Some countries due to higher economic and cultural values have dwelt upon the issue justifiably and had come out with a verdict, and some other countries which are still developing under a relatively inefficient machinery, have also passed a verdict. Doesn’t matter if they are for or against homosexuality, all that matters is if they have done it justly.
Most of the gay rights activists would tend to have this assumption that these 83 countries which are dictatorial, religious, and democratic, are wrongful in recognizing unnatural offence; this is an extraordinary claim and puts an extraordinary amount of burden of proof upon whoever assumes that.
I can’t assume that without any conclusive proof, if there are people who are doing so then their logic and reasoning is at question here.
Once upon a time the whole world used to believe that Earth is flat; religious feelings could be easily injured back then, people did all sorts of activism to punish the one who would claim earth was round. It actually never mattered what the majority thinks, but what can be justly proven. The opinion of the majority just increases the burden of proof, and whoever takes this gigantesque burden of proof the full onus is upon him to prove otherwise. If he can do it then he is a hero, if he can’t he may die trying, nobody will remember him.
There are countries which banned elements of prostitution, but couldn’t ban it as a whole on the grounds of humanity. There are countries which completely criminalised it, and there are countries which completely freed it.
We call those countries progressive which due to the larger interests has banned it and on specific interests has allowed it. We respect those countries which operate on the basis of any reason which primarily prevents any pursuance which has a negative output and secondarily promotes people to have their own individual pursuits.
We have to consider reasons and reasons only to decide if something is legal or illegal, no place for feelings, rights, or directives as such.
Should the government legalise relations between two living beings? If yes, then how much; if no, then how much not?
The quality of the answer would depend on the depth of logic and/or knowledge one has.
Assuming I have limited knowledge about anything on this earth, and limited reasoning as well, I would better leave this question to be judged by the professionals.
But that does not excuse me or anyone for that matter from deciding on this pressing issue that is today. People would truly abide by the law only when they have personal reasons to do so.
I am taking the defense of opinion so that even if I am wrong nobody finds offense at this. I can’t ever be sure about the veracity of my arguments, and all that I can do is pursue it.
- The UK way – everything is legal unless contrary to popular interest
- The Indian way – anything can be made legal (from being illegal) only if it’s in popular interest
Theoretically, in the UK if there are changes to be made in the penal code, the legislators may just decriminalise it, while in India the legislators have to decriminalise it in the penal code (by putting an exception), and legalise it by stating that it comes under the Right to Life under the Constitution of India.
The process therefore in India requires more scrutiny than the UK
In India when the law is settled on the validity of Section 377 (IPC), there needs to be a good reason to overthrow that law. We have to delve deeper and find reasons in favour of homosexuality, mere claims of rights and freedom may have an effect, but the process may be slow and uncertain. Claims need to be perceivable, claims need to be established, and that irreparable legal or personal damage would be caused otherwise needs to be proven, the court needs to be persuaded that denying such a thing can lead to an irretrievable loss to humankind.
For the land beyond the Indus, guarded by the Himalayas in the north and the east, it is a common history that the land had from the time of civilisations much resources in excess, a very fertile ground for flora and fauna.
Indians had achieved more than survival millennia ago, people had enough of everything and had a sense of achievement of goals. When goals are achieved, i.e. when there is obviously no threat to survival in the foreseeable future, the pursuits would change from survival to higher modes of happiness, and that happiness can come subjective to the emotions and choices of an individual.
Survival is an objective truth which none can deny, beyond this objectivity lies an ocean of subjectivity, when we talk about happiness we have to realise that reasons (causes and effects) are a limitation on this as well. The reasons can’t definitely be as strong as of the objective realism of survival, they are potent enough to create deviations from the pursuit of survival. People are liable to try and sail out in the ocean of subjectivity in the pursuit of happiness.
We have lots of authorities which can portray homosexuality in India even earlier than the era of Mughals.
But that is not an argument, we had child-marriage, dowry, and sati too, should we re-legalise it now? It doesn’t matter at all what the history says, but all is reasonable if it is something valid for the current time and on the basis of human sciences and reasoning.
Human sciences and reasoning
1. The law can always be correlated to the popular interest. So we have to decide what is popular interest and we have to do it by a plebiscite and/or do it by way of reasoning.
If we were given an option, between homosexuality and heterosexuality, we would choose heterosexuality, don’t trust me? Try out this poll result
Please do not accuse me of anything, this was a question which may be improper or maybe naive even, but this question was answered, liked by some, and even shared. The ratio might be wrong to a certain extent, but at least it represents the majority opinion.
When a ship is sinking with only one life boat available and there are two islands equidistant, even if there are different groups who would want to go to different islands, what matters more to the decision maker is to selflessly decide what the majority wants.
May the majority be cynical or have malafide intentions against the minority, but what matters are only the numbers.
In a democracy when two groups of people have no difference except their sexuality I have to prefer the sexuality which is more in number when the situations are decisive.
When we see somebody using their Audi A8 as a kitchen, no matter how happy he is, no matter how much he contributes to the society otherwise, we would still call him stupid. I recall, my friends use to call a boy stupid because he used to sing the Shaktimaan anthem and kept spinning all day, everywhere thinking he is Shaktimaan.
I will not say that the common perception is always good and beneficial, Indians en masse used to commit Sati at one period of time, just because it was common for them it didn’t mean it was good. Or for that matter when Bill Gates had introduced the Tablet PC for the first time everybody laughed and discouraged him, that did not mean he was really stupid just because of the popular opinion about him.
All that matters is not how people treat you, they would always laugh at uncommon occurrences, but how probable is that you are wrong.
Investing in mutual funds is always a good amount of risk, when the risk:gain is higher it is safe to not invest and vice versa. It is very probable that you would lose out if the risk:gain is higher, this is the point when it’s very probable that you are wrong.
This is the point where instead of arguing with them, you should actually research and ascertain your chances of winning. You should forget the law, the society, norms, customs, everything and weigh your options dispassionately.
If you do not find any higher reasons beyond your own self, it is very probable that the act you are committing does not affect others, no possibility in affecting in a good way.
Now as a policy maker, I definitely have to prefer heterosexual behaviour over homosexual behaviour whenever the situation calls for that, I can’t employ my own senses, I am duty bound! More than groups or individuals it is what the larger population wants.
2. The prime fallacy of the above argument could be that it assumes resources are scarce. This point would state if resources are really scarce.
There is a huge difference between resources and resources available. Let’s take RI and RA.
i.e. RI >> RA
RI is almost infinite, earth provides enough sustenance continuously. It’s almost like an endowment fund created by nature from which we can reap benefits almost forever. Energy or mass can’t be created or destroyed.
And contrary to that, RA is finite, limited, and sometimes scarce.
RA is limited due to limits of our capabilities in identifying resources.
Let’s take this argument of positive output. There are actions which increase the utility of resources (eg: poetry, music increases the cultural valuation of a populace), there are actions which just balances the resources it consumes, and there are actions which have a total negative output (eg: theft, robbery, poverty).
Tea leaves being dried and boiled with added sugar increases their utility for us. If tea leaves were to contain even magic potions in them, but didn’t affect us at all and it only grew for its own benefit, we would not have grown plantations at all. Economics simply could not have allowed its existence alongside humans.
It is also applicable on dogs, cats and snakes. Even though snakes are equally living beings, even though there are non-poisonous snakes, humans have generally avoided them because unlike dogs or cats we cannot draw support from them either physiologically or psychologically. Generally snakes would prefer to stay in a hole all day long,and they prefer to stay lifeless when they have enough food. And when snakes stay lifeless digesting stuff for 2 weeks all we can do is watch it digest. Snakes for some reasons can’t provide companionship.
(Assumption: Dogs and cats support us emotionally and physiologically)
A group of robbers though create value for themselves they adversely affect a larger number of people. We hate such activities being committed by others, even though most probably in our deepest desires we would love to rob a bank.
Another example falls under economics, nobody will like to run a machine which has just enough output to balance the energy it consumes. Also a group of robbers won’t rob just enough to meet their livelihood and other costs, they would rob more than they can foreseeably need.
This hints to a safely drawn conclusion, that people want to have the highest output always because there is a presumption of scarcity unless proved otherwise.
3. The argument in both the above arguments was correlating scarcity of resources with homosexuality. Seriously how was that even related?
Only when resources are scarce we would think of making the best and the most sustainable choices, if resources were to be infinite, nobody would care about how others react or they themselves react to certain stimuli.
I have taken up a situation of scarcity in which we normally live, to help us realise what would actually lead to utility of resources.
And this is a sad truth that if there is something which we do and it doesn’t affect the public in a better way, they won’t give a damn about us. This fact is not limited to what people perceive, but the undeniable conclusion.
Moreover homosexuality renders reproductive organs useless, in fact reproductive organs are the most valuable resources any animal has.
When there is wastage of resources due to certain actions we should be more preventive about letting anything go to waste.
4. Ingredients of homosexuality
If we dissect homosexuality mostly we would get:
Happiness, Bonding, Freedom, Rights, Natural, Balance of nature
In the increasing order of selfishness from the eyes of a heterosexual.
Happiness being the least selfless observation of a heterosexual. Let’s talk about what is happiness or pleasure. According to Oxford, happiness is ‘feeling or showing pleasure or contentment’. The question is not that who gets content? The question is if happiness is even an important or justified test?
When it comes to reasons like pleasure, contentment or bonding which is definitely secondary to survival of the species, an individual may prefer the type of sexuality which gives her the contentment and bonding she wants, irrespective if the species survives or not.
There is nothing wrong in pursuing happiness, but happiness by nature creates a huge probability of total negative output. Most of the crimes occur due to presence of happiness and shortcuts. Shortcuts will always be there, it’s a truism that shortcuts will exist, we can’t prevent shortcuts from being there in nature, and with advancement of science and technology there will be more shortcuts, what matters at that moment is if we utilise those shortcuts only for happiness or for a greater common good.
Therefore relying on the happiness test for justifying actions or inactions is not an intelligent choice. People rely on cultural, historical, geographical, scientific, philosophical and many other tests, at the end all that matters is if something is done in the way it is best in our interest. There should be better tests, say I propose you the sustainability test and the objective test.
The objective test is to determine the mode of execution of an action or inaction and find if it really leads to the objective pursued; and the sustainability test is to measure the quantum of action of inaction required to achieve the objective.
If happiness is the objective, any sexuality can pass the objective test with flying colours, they can even pass the sustainability test (more the orgasms more the happiness). Therefore it must be good and legal if all that we want is happiness.
But then we have to note that even all irrational, criminal and self-indulgent activities can be justified by happiness. This begs us to have a different objective, a wider one which is prosperity. This would be considerably dealt with in point 5.
If homosexuality is to be legalised, how does it help?
When straight people talk about freedom and rights of the gay, there are many probabilities:
Mostly, altruism, activism, or self security.
Why would someone fighting for her own right rely on someone else’s altruism? Nobody does that. Relying on others’ altruism is relying on uncertainty, luck, chance, etc.
I won’t if I were gay, I would have fought for it as if it is the best thing to do, with a 100% assurance that people are supporting me.
I would have needed brothers who are activists in nature, not selfish reprobates, who are insecure because the horizon of their own freedom and rights is also getting clouded.
And if I have to find people who are straight and activists, reasons are necessary. Reasons which say that yes, homosexuality is as good and is in everyone’s benefit.
And when we have to prove so, the argument that being gay is beneficial for others is much credible, I will not discard this argument yet, as it needs a lot of clarifications in scientific, biological and evolutionary knowledge.
But as always extraordinary claims require extraordinary evidence, this part of the argument can be kept in abeyance and dealt with later in future maybe.
For a person who is homosexual himself or supports homosexuality who may not have reasons to prove its benefits, will have to ask for her freedom and rights to her life and privacy.
But what are rights actually? Can’t every action we want to do be made a right? What is the ambit of reasonable restriction? Why are drugs being prevented, what is wrong with alcohol and cigarettes even?
The only test here is not the “presence-of-rights” test, or “presence-of-article-in-the-constitution” test, but the very objective “greater-benefit” test you can’t wish something to be legalised which is not in the greater interest; it is just not practically possible. Such a bill would be liable on the altruism or irrationality of the legislature.
Some people would argue that homosexuality is not unnatural and thus shouldn’t come under the ambit of S. 377.
I implore them to explain it to me or to someone they care about, as to what is unnatural then?
Going by that argument, nothing is unnatural, everything in nature happens naturally.
Poverty, crime, rape, bestiality, paedophilia, murders, wars, every freaking thing on this Earth happens naturally, then why should we prevent them?
Oxford defines ‘unnatural’ as ‘contrary to the ordinary course of nature; abnormal’.
Indian Penal Code defined it as ‘against the order of nature with any man, woman or animal’.
In my opinion any object/action which renders resources useless and/or tends to decrease the resources in the long run is unnatural.
If all definitions are to be ignored, and the meaning really is so subjective, then we can have a plebiscite again.
Let’s find what most of us consider to be unnatural.
And when ‘unnatural’ is defined at last, the argument stoops down to the lowest possible point of human intelligence.
Why stop only homosexuality? stop smoking, masturbation, drinking, etc. first.
A person who had studied logic and has logical understanding would not take even a microsecond to find out the fallacy of this argument.
Multiple fallacies actually, one being the straw man fallacy, another called Special Pleading fallacy and many other violations of logic.
For the uninitiated, let’s take the example of skipping a traffic light.
I have on multiple occasions heard motorists make this argument to the traffic officer:
“Why did you only have to catch me? Look at that guy in red helmet, he also skipped, catch him also!”
An Income Tax offender can always plead in court that “Your honour, why did you have to catch only me, there are lakhs of other people and bigger corporations which violate tax laws, let me go, and catch them first.”
The judge will be like: “ 😛 ”
This is not an argument at all. This is pleading.
When you are wrong, all that matters is if you are punished or not, let the whole world go to hell.
Some people would be against plebiscite, and they would be categorical in denying its validity. I would always request them to go back to point 1.
The last part is “balance of nature”, seriously?
I don’t even want to talk about that part. It will damage my ideals, my fundamentals and whatever human is there inside me.
Saying homosexuality is natural because it’s an act of nature to balance the population, is the biggest example of bigotry and spuriousness.
You want someone to be sacrificed as an act of balance? Why? Because you want to procreate?
How wrong and worse it is to think like that? People consider others as abomination of nature, and deal with them dwelling in this malafide satisfaction that nature has created the other person so that she can prosper.
This is not even an argument, this is bigotry and shows the lowliness of the human species.
If I were a decision maker for a considerable number of people I couldn’t have allowed this kind of reasoning from affecting anyone. I would have wanted homosexuals to change their ways if this is real, and stop them from sacrificing themselves.
5. Prosperity Test
Whereas, prosperity implies spread of the human genome, growth of the human race. The objective test of prosperity can’t allow something as homosexuality, as this is quite deviated from the meaning we can impute to prosperity.
Even if I consider that our meanings of prosperity is not good enough, and homosexuality passes the objective test, the second question arises in sustainability test, i.e. How much? Homosexuality has to be limited by nature or by law to such a ratio so that the survival of the species is never threatened.
But trying to find that golden ratio can be very difficult and risky. Maintaining the ratio would be a even bigger task. If any country allows it then the census has to record the number of homosexuals and make it illegal back again if it crosses that golden ratio.
More the progressive the country is, more difficult it will be to balance such a population. The other option is to simply not allow it in the first place. So that the question of sustaining the population doesn’t arise.
Let’s assume homosexuality is made legal.
If homosexuality is such a great thing, that everyone would desire, the only relief could be if such a population never crosses the golden ratio naturally or legally. That is when consciously or unconsciously we would desire that homosexuality never spreads out of control. We would teach our kids not to be homosexuals, the society would be inconspicuously preventing homosexuality from spreading. If the populace gets panicky or traumatised they might make oppressive laws against the gay population and possibly the majority by its will will try to criminalise it.
Maybe that’s what is happening today.
Something on the same lines of objectivity and sustainability test has been adopted by the Supreme Court of India in multiple cases as referred to the Intelligible Differentia test.
The Supreme Court in National Council for Teacher Education v. Shri Shyam Shiksha Prashikshan Sansthan has reiterated that the Constitution doesn’t allow class legislation but permits reasonable classification, based upon an ‘intelligible differentia’.
For example if poverty is to be eradicated, how does differentiating between elite taxpayers and common taxpayers help?
The concept of Intelligible Differentia was picked up even in Naz Foundation v. Government Of Nct Of Delhi during its judgment at Delhi High Court, what the court considered to be objective should not have been the objective in the first place.
The court talked about ‘public morality’, which is not my concern here, not a reasonable concern at all. Morality is such a subjective topic that none should be made to suffer consequences of what others consider immoral.
The objective should have been prosperity of the human race, the survival of the species.
Legalising something which does not favour the species, in fact which reduces the chance of survival however negligibly, can never pass this test.
Some other casual arguments which people make:
1. If you want to comment upon homosexuality, talk to real homosexuals, and face life in their shoes.
This argument is like telling the white president of USA to become black and see what blacks have to face throughout their lives. Seriously, we have better options. When the fundamental question is about how to know the truth, philosophers call it epistemology.
2. People are born homosexual they don’t have a choice.
There is this book My Genes Made Me Do It!, the authors have conclusively held that homosexuality and many other human activities are not by choice but by genes.
There are many debilitating handicaps with which people are born today and had taken birth earlier also. Studies show that Hiroshima and Nagasaki bombing still create handicaps from birth.
Some other studies show that haemophilia, sickle cell anaemia, Down’s syndrome and many other diseases are purely genetic. Even some variations of cancer are also because of DNA mutation.
Should we stop pursuing medications and chemotherapy saying that these are all normal?
It doesn’t matter how people are born, all that matters if they want to be cured, change or left alone. When someone is drowning, it doesn’t matter if she was born in water, felt asleep on water, met with an accident, or went there by choice, all that matters is if she has the necessary willpower and capability to get out of the water.
Homosexuality according to many studies is not a disease, nor it is debilitating, I don’t want to come across like Ramdev Baba. I just want to suggest that all that matters is if people want to change even if they are born in a certain way. There lies the supremacy of human species, that no matter what, we can do what is most reasonable.
3. Homosexuals can’t change, you have to accept the way they are.
I completely believe in this argument, and I have respect for the people who stand by the way they are. Who do not want to give up their identity because society says so. They realise their pursuits and keep excelling in their domains.
But what about bisexuals, I believe they can, and when they don’t want to in spite of so many reasons, it shows their utter selfishness and indifference to reasons and the legal system, and such a self-centered person might be dangerous for the society otherwise.
Given the arguments above, the conditions left for homosexuality to be made legal are:
a. A reason which points out the benefits of homosexuality towards the greater good of the humanity as a whole, if they procreate otherwise.
b. Wish that not more than just a handful percentage of the human species try homosexuality, if they don’t procreate otherwise.
c. Just accept them, no need of reasons, humans are greater than reason (this is not an argument, this is imperious superciliousness).
Currently the second and third options are happening across the world. I would wish the first option to happen in India.
I want everybody to be able to do what they want to, everybody to realise their freedoms and rights, but they should do so only when they are fully informed about the consequences and their actions are reasonable.
I wish that the Supreme Court of India legalises homosexuality and on the basis of a great reason, both of which didn’t happen yet.
- On why you should be honest; Crimes & petty crimes; Delhi v. West Bengal
- What should you fight for? Actual Problems, Ancillary Titivation and Silver Bullets