On July 2, 2009, India became a freer nation. On that day, Chief Justice Ajit Prakash Shah and Justice S Muralidhar of the Delhi High Court held that the criminalisation of homosexual acts under Section 377 of the Indian Penal Code undermined the equality, privacy and dignity of a class of citizens and thus violated their fundamental rights. Shockingly, in December 2013, Justices GS Singhvi and SJ Mukhopadhaya of the Supreme Court turned back the clock, holding that only Parliament could change laws, not courts. Their judgement ignored the crucial role of courts in protecting fundamental rights of individual citizens which are often threatened by unjust laws enacted by parliaments based on the sentiments of the majority. Thankfully, that decision is now being reconsidered by a larger panel of Supreme Court judges and there’s every indication that India is finally on the path to providing a measure of irrevocable justice to its gay citizens.

Although the goal of equal rights for gays and lesbians is compelling enough to justify any non-violent means of achieving it, I can’t resist registering my dissatisfaction with most of the arguments offered in court and in the media in favour of reading down Section 377. There are three broad ways in which the law on unnatural sex has been assailed. We can term these the postcolonial view, the faith-defined view, and the liberal view. Only the last of them is tenable. The first two, however effective their propagandist value, are fundamentally misguided. The postcolonial view betrays a deficit of historical accuracy and the faith-defined view a deficit of simple logic.

Culturally acceptable?

In the postcolonial view, Section 377 imposes an alien belief system and goes against the grain of Indian culture, which had no prejudice against homosexuals before the era of imperialism. Hindu conservatives who now rail against legalising homosexuality are actually channelling outdated foreign ideas rather than traditional Indian ones. Mukul Rohatgi, appearing for the petitioners challenging the constitutionality of Section 377, used this argument during the first hearing of the case by a five-judge bench on Tuesday. “Section 377 is based on the Victorian morals of 1860,” Rohatgi said. “The position in ancient India was not so, as is indicated by the existence of a character like Shikhandi [in the Mahabharat] and the depictions in the Khajuraho temples.” It is comforting for urban cosmopolitan citizens to feel their own perspective on sexuality is closer than Swami Ramdev’s to ancient Indian attitudes. Sadly, that is not a feeling vindicated by history or myth. The Khajuraho temples cited by Rohatgi contain no celebratory depictions of male-on-male sex. As for the story of Shikhandi, of which there are different versions, it involves a miraculous gender transformation ensuring that sexual intercourse, when it takes place, happens between a male and female. There are dozens of stories of such gender shifts in Hindu mythology, the most famous being Vishnu changing to Mohini. Gay activists seize on them as affirmations of traditional acceptance of homosexuality, but the fact is that had Indian culture openly accepted male-on-male sex, we would have found descriptions of it in the voluminous literary and visual record.

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Where there is a direct reference made to homosexual acts in ancient Indian texts, the practice is demeaned or condemned. The punishment for it, though, is minor. The Manu Smriti (11.174) states, “If a twice-born man commits an unnatural offence with a male, or has intercourse with a female, in an ox-cart, or in water, or during the day – he should take a bath along with his clothes.” Manu is harsher on lesbians than gay males, but even they face a considerably better fate than being necklaced with a flaming tyre or being condemned to an eternity of torture.

We can conclude that traditional Indian culture, while unfriendly to homosexuality, was less affronted by it than Europe in past centuries. But, if ancient India heaped no cruelties on its gay population comparable to what Britain did to Oscar Wilde, Alan Turing and thousands of less famous but equally tragic victims, the postcolonial Indian justice system armed with Section 377 has rarely prescribed harsh punishments for consensual sex between adults. It has operated more in line with traditional Indian culture than 19th century British values, but that is simply not good enough for us today.

Matter of faith?

Rohatgi also employed what I call the faith-defined view, which holds that homosexual acts ought to be legal because they emerge from biologically determined desires. Countering the idea that gayness transgresses the “order of nature”, a viewpoint enshrined in the wording of Section 377, Rohatgi argued, “What we are saying is that whether you are gay or lesbian, it is not a matter of choice; it is innate, you were born that way and that is why you react differently from others of your sex…usually, males are attracted to females, but in this group, males are attracted to males…research made in the West shows that it is natural, that it has a connection with one’s genes.”

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I call this a faith-defined argument because it rose to prominence in the United States as a counter to Christian fundamentalists who condemned homosexuality as a lifestyle choice. Winning the argument against the fundamentalists involved convincing believers that gays were “born that way”; in other words, created gay by God.

As a result of the political argument being framed in terms defined by religion, the gay community and its mainly left-wing supporters in the US, and eventually across the globe, grew increasingly convinced that homosexuality was innate, while conservatives resisted that conclusion. It was a very peculiar development because the ideology of the contemporary Left is founded on a philosophy called social constructionism, which considers most traits and behaviours the products of social conditioning. Bringing biology into the discourse is taboo in every area except the LGBTQ arena, within which deviance from the “born this way” creed is frowned upon. It’s not exactly a consistent position, but cherry-picking data for political ends is something the Left does in a number of areas.

The truth is that while we have strong indicators of biological processes at work in determining sexuality, these are very imperfectly understood. More importantly, practices nobody in their right mind would consider legalising can also have biological bases. To give one example, paedophilia was “once thought to stem from psychological influences early in life. Now, many experts view it as a sexual orientation as immutable as heterosexuality or homosexuality. It is a deep-rooted predisposition – limited almost entirely to men – that becomes clear during puberty and does not change”, according to a piece in the Los Angeles Times. Assuming it were proven that paedophiles are “born that way”, would it be reason to legalise the practice? Of course not. Outside the faith-defined debate, it matters not a whit if an action stems from an innate or acquired trait. Rape is condemnable whether God made you a rapist or you chose to become one. Conversely, love and sex between consenting adults of the same gender is every bit as legitimate and marvellous as love and sex between people of opposite genders or in-between genders, irrespective of its origins.

What the Bible, Quran and Vedas say ought to be entirely irrelevant to legalising or criminalising behaviours in modern societies. India must decriminalise gay relationships for the same reason dozens of nations from Guinea-Bissau to Argentina to Kyrgyzstan have done it: the liberal idea that transactions between consenting adults conducted in private are the business of nobody but the adults concerned. Secular, liberal values rather than faith or tradition will also drive the next step: a positive affirmation of the value of a variety of sexualities through anti-discrimination legislation and the securing of legal status for same-sex unions.