Judging the Magdalene Law Love and the Homosexual

The decision of the Delhi High Court, on the 2nd of July, to read down Section 377 of the Indian Penal Code in so far as it pertains to consensual sexual relations between adults (even when they be of the same sex), was welcomed across the country, and indeed internationally. This reception has good reason. The reading down of the provision decriminalises an activity that many argue is normal, if less common. For those who are not convinced by the normalcy of same-sex relations, the argument has been offered that even if one disagrees with the proposition that homosexual relations are immoral, a criminal identity is hardly something one can thrust on people who are going about their business in the privacy of their homes..The response to the law however was somewhat distubing. One saw gay activists and others claim to ‘be proud to be Indian’. This pride is somewhat bizzare. Why pride in the country? One can feel a pleasure in knowing that innocents will be no longer branded criminal. But pride? The pride became understandable when one ran through a number of Facebook messages on the 2nd of July. The pride was connected with India having arrived in the 21st century, in having ‘grown up’, and in having ‘progressed’..The whole idea of progress, the maturation from immaturity to maturity is deeply tied to our colonial past, when the colonised were held to be like infants, who needed to be disciplined by the adult in the relationship – the white colonial master. Indeed, Winston Churchill maintained that the Indians were not ready (i.e. not mature enough) for self-rule. National movements were attempts by colonised elites at recovering their self-respect and showing that they were indeed mature, and progressive. Unfortunately, all too often this meant not charting their own course in history, but following the path of the former colonisers. The welcoming of the decision of the Delhi High Court therefore, I suspect, has less to do with a deep-seated commitment and belief in the rights of persons to a dignified existence, and more with the desire to be like ‘them’. If they can recognise homosexuals, then so must we, else we might prove how ‘backward’ we are! And of course, as the whole idea of ‘India Shining’ showed us, we care deeply about what the West (read world of the white man) thinks about us..If the decision of the High Court has been welcomed by the secular liberal and assorted others, members of the religious right have been quick to denounce the decision protesting that this decision will only encourage more ‘anti-social activities’. Homosexuality is against the traditions of Islam, Christianity and Hinduism, they scream..Before the religiously inclined make any decision however, it would be worthwhile to have a look at the statements made both by the Delhi Archdiocese as well as the Catholic Bishops Conference of India. Writing on the matter, Fr. Dominic Emmanuel, a significantly placed cleric in the Archdiocese of Delhi in his column in the Indian Express expressed that “the Christian community does not (repeat it does not) treat people with homosexual tendencies as criminals. Nor does it be believe that they can be regarded on par with criminals. Therefore, it has no serious objection to the repealing of Section 377, which incidentally is what the Delhi high court seems to have ruled today in its historic judgment. In other words, it does not object to decriminalising homosexuality, though it fears that doing so might increase cases of HIV/ AIDS”. Reference to documents from the Vatican, in particular the Pastoral Letter “On The Pastoral Care Of Homosexual Persons” suggests as well that hatred toward the homosexual is not the position of the Church, but affirms the loving embrace that must be extended towards them. To quote Fr. Emmanuel again, “The Vatican’s stand on this is quite clear: “They [homosexuals] must be accepted with respect, compassion and sensitivity. Every sign of unjust discrimination in their regard should be avoided” (From the Catechism, No. 2358). But one must hasten to add …that decriminalising is not the same as: a) granting legal benefits; and b) accepting it as normal or natural.”.It should be clear that the Church finds itself in a sticky position vis-à-vis the criminalisation of homosexuality. It does not bless the criminalisation of the homosexual, but is clearly concerned with the impression that if decriminalised, the message that will go out to the wider world is that homosexuality is immoral. I do not wholly concur with the position of the Catholic Church; and for that discussion the space of this column is not sufficient. Yet I believe a valid point is being made by the Church when it cautions us against the perils of “consumer culture”. My own perspective on the welcome sexual liberation of the West has been that while liberation was obtained for the human person from repressive sexual mores, the same person has now been colonised by the culture of consumerism, which sees the human body as just another vessel for consumption and pleasure..To return to the thrust of the argument though, in this sticky situation, and especially given the larger context of India, it would be wise for the Church to remain within the moral sphere and not dictate the law, or lend their voice to dictation. The sphere of the Church (and religious leaders of other denominations) is ideally the moral sphere. In these days when States are composed of plural societies, we cannot hold on to the proposition that law is the reflection of the morality of society. Or as Cardinal Varkey would like to phrase it, “Criminal laws of a country defend the minimum morals of a society.” Those days, if at all they existed are gone. The notion of law that this proposition suggests was a notion of law suited to societies that were forming themselves into national communities. Nationalism as we know has often had to wipe out entire communities to produce the unity they are so proud of. The law of the State as we would have very often noticed is also unable to deal with the human being owing to the burdens of politics and procedural bureacracy. The moral sphere on the other hand, allows us to place ourselves in the position of Christ when judging the Magdalene. While not necessarily flexible, it is able to stand back from dogmatic positions to recognise the vulnerability of the human condition. It is only in the moral that the Christian position of Caritas, can truly be realised, not through the violence that is inherent in processes of Statist Law..Jason Keith Fernandes is a doctoral candidate at the Dept. of Anthropology, ISCTE, Lisbon and associated with CSCS, Bangalore.