Minority community’s rights have to be recognised
ALOYSIUS D. FERNANDEZ
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Conflict between human rights and religious faith
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The recent Delhi High Court verdict legalising gay rights in India has become a subject of open discussion, getting more and more momentum. I think the issue of legalising the lesbians, gays, bisexuals and transgenders (LGBT) relationship is to be looked at from different angles.
The (LGBT) community is a reality. Their number is less; they are not part of the mainstream society. India is a country where minority rights are held in high esteem. Minority rights are fundamental to any particular group. Thus LGBTs have their natural rights which are to be protected and respected. Most of these people are so by nature. Perverted cases are exceptions.
To label LGBTs as anti-natural is an insult to these brothers and sisters, who form the LGBT community for no fault of their own. To brand them as immoral and anti-nature and to isolate them is definitely an infringement of their basic human rights. People who have come up against the High Court verdict are basically from the Christian denominations and from the Muslim leadership. Are we to mix up basic human rights with religious faith and religious rights? One is this worldly; the other is other-worldly. Thus, a comparison itself is a fallacy. There may be some instances or stories in the Bible or the Koran which have some connotations to LGBT relationships. That has to be placed at its actual locus. It should not be made to transfer and attribute to another field which is totally alien to the former.
The legal angle
About LGBT relationships, the church leaders have made a distinction between moral values and human rights. According to them, the question is moral and thus these relationships cannot be decriminalised. What is the basis of morality, if not the basic human rights as equality, liberty, justice, brotherhood which the Indian Constitution upholds in its Preamble? Section 377 of the Indian Penal Code criminalises homosexuals, bisexuals, transgenders and others whose sexuality does not conform to the mainstream heterosexuality.
Article 21 of the Constitution gives equality of opportunity and equality before law to every citizen, irrespective of caste, creed, place or sex. The question is whether section 377 is against the Constitution or not? Let us quote section 377: ‘Section 377 of IPC imposes a maximum penalty of life sentence on anybody who has carnal intercourse against the order of nature, with any man, woman, or animal.’ On July 2, 2009, the Delhi High Court judges said: ‘We declare that section 377 IPC, insofar as it criminalises consensual sexual acts of adults in private, violates Articles 21, 14 and 15 of the Constitution.’
From this, we can see that the court has not struck down Section 377 of the IPC. It has only made some clarifications. The law remains valid for the minors as well as for the non-consensual sexuals.
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