Dissecting Human Functions

By Averthanus L. D’Souza

VATICAN CITY, July 10, 2009, 11.00 Hrs (Averthanus L. D’Souza):

The public discourse consequent to the recent Delhi High Court Judgement on the issue which is popularly described as the ‘decriminalization of homosexuality’ reveals an astounding confusion which is characteristic of present day popular thinking. This confusion is compounded and fuelled by the inept and irresponsible populist press which thrives on sensationalism. The focus of the Delhi High Court decision has been completely distorted by some sections of the media. It should be noted that the High Court has concerned itself solely with the issue of discrimination against a social group – the homosexuals – by the official machinery of the government, viz. the police. As reported in the Press, the Delhi High Court has carefully prefixed its Order by stating that “We declare that Section 377 IPC, insofar as it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution.” The issue that the Delhi High Court applied its mind to is the (limited) specific issue of discrimination on the grounds of sexual orientation. To this extent, the Court has only reiterated the principle that there should be no discrimination against (or persecution of) any person or group of persons on the basis of race, caste, religion, sex, language, place of origin or ethnicity. This principle is known in Jurisprudence as “equality before the Law” and is an integral part of democracy. It is commonly accepted by all democracies in the world.

It should be noted that the Delhi High Court has not “struck down” or abrogated Section 377 of the Indian Penal Code as incorrectly claimed by some media and some vested interest groups. The Section 377 remains intact. It has only been (re)interpreted in the context of the Constitutional right to equality before the Law. It is therefore inaccurate to claim, as some groups are doing, that the Delhi High Court has “legitimized” or “approved of” homosexuality per se. The fact is that the Court has not even applied its mind to the issue of whether homosexuality is “normal” or “aberrant.” The logic of this decision will apply equally to any other disadvantaged individuals or groups of individuals such as those suffering from Hansen’s disease (leprosy) or Down’s Syndrome (mongolism) or other physically, emotionally or mentally handicapped persons.

Outside and beyond the very limited focus of the Delhi High Court Order the debate still remains open about the legitimacy and/or desirability of promoting homosexuality in Indian society. Those who loudly advocate the view that homosexuality is “normal” behaviour fail to take into consideration the fact that all serious medical and psychological practitioners and Professional Journals consider homosexuality (in all its variegated manifestations) to be abnormal behaviour – in the sense that it is a deviation from what society considers “normal” behaviour. It is estimated that only between 2% to 13% of any population is identified to be homosexual. Surely this does not constitute ‘normal’ sexual behaviour. The homosexuals themselves implicitly accept this by claiming that they are a sexual minority. They make their claim for protection under the law on the basis of being a minority community (?). Arguments that homosexual behaviour has existed since the dawn of human civilization simply cuts no ice. It can be argued with equal cogency that murder, theft, incest and adultery have also existed since the dawn of human civilization. This does not, therefore, make them acceptable or normal. The scriptures and codes of morality of almost all human societies have condemned homosexuality and have provided for penalties to be applied to those who transgress those codes. Some other active proponents of homosexuality argue that homosexual behaviour has been observed in animal species. They fail to explain that these observations are of the exceptions, not of the “normal” behaviour of those animal species. In any case, to assume, as these arguments do, that human beings are no better than animals, is to strike at the very roots of human dignity.

Some protagonists of social acceptance of abnormal sexual behaviour have argued that this deviant behaviour is pre-determined by the genetic make-up of the individual; and that, consequently the individual cannot control his/her sexual proclivities. This argument is completely devoid of any substance. Even Psychologists and Psychiatrists of standing have now abandoned this “theory” of genetically determined deviant sexual behaviour. The latest issue of the “Journal of Human Sexuality” (June 2009) “finds that sexual orientation is not immutable and that psychological care for individuals with unwanted homosexual attractions is beneficial and poses no significant risk of harm.” The only conclusion that any reasonable person can arrive at is that those who are afflicted with homosexual attractions should seek psychological help from Professional Psychiatrists or at least Psychologists and trained Counsellors.

Incidentally, it should be borne in mind that medical science has not “given up” on medical challenges. Research in many fields of medicine is still ongoing to find the causes of, and the eventual cures for diseases such as Alzheimers, Parkinsons, Down’s syndrome, HIV/AIDS, autism and many others. Research has already provided us with cures for dreaded diseases like tuberculosis, leprosy, malaria and others. It is neither sensible nor medically correct to assume that homosexuality is untreatable or to create a political platform for an ephemeral and totally untenable “right” to homosexual behaviour, which, it must be strongly emphasized, is destructive of the integrity of human society. In this connection, it should also be emphasized that rights are not conferred by the Constitution (as claimed by one so-called gay rights activist lawyer on an NDTV 24x7 programme) or by any other human authority. Human Rights are inherent and inalienable by virtue of human personhood and no human authority can abrogate these rights. If human rights are conferred by any Constitution or monarch or government, (as claimed by some ignorant lawyers and activists) they can equally be abrogated by these authorities. We have seen the practical application of this false understanding of human rights in the mass murder of the Jews under Nazism, ethnic cleansing in Bosnia-Herzegovina, parts of Europe and Africa.

In the context of this discussion, it is necessary to bear in mind that the Law does not encompass all of Morality. Morality has to do with Truth, Beauty, Goodness and, above all, Love. Morality cannot be encapsulated in a legal framework of a set of rules and regulations. The most insightful observation about the relationship between morality and the law is the statement that Jesus made to the Pharisees (the guardians of the law in his time) that Man is not made for the law; but rather that law is made for Man. (Matt.12: 1-8; Mk.3: 1-6)

It has also to be remembered that the Law does not tell us what we “ought” to do. It only tells us what consequences will follow if we break the law. Prof. Morris Ginsberg draws our attention to the Kantian view, reflected by the British Idealists Bosanquet and Green, that the “law can only deal with outward behaviour and with intentions only to the extent needed to ensure compliance in terms of outward performance or abstention. Morality, on the other hand, is in its nature inward. It consists in the disinterested performance of self-imposed duties. The function of law, in so far as it uses compulsion, is to maintain the conditions which make morality possible, that is, to enforce rights, but it cannot and ought not to enforce righteousness, since it is not within its power to ensure that an action shall be performed from a moral motive…” (On Justice in Society, Penguin Books, 1965. pg.220)

The Law does not encompass all of Morality. It only serves as an instrument to ensure morality in Society. The Law exists to ensure peace, order and harmony in Society. It also deals with matters which are not necessarily considered to be in the realm of morality e.g. requiring drivers to keep to the left side of the road or not to park their vehicles in no parking zones.

The misguided campaigns by homosexual groups to “legalize” homosexuality - which they admit is an “orientation,” - is akin to the equally ridiculous campaign of some women’s groups to gain legal recognition of women’s “reproductive rights.” They fail to understand that reproduction is a physiological function of women, just as is the digestive function or the excretory function. It will certainly be remarkable to see the day when women begin to campaign for their gastronomic rights, their respiratory rights or their excretory rights with the same enthusiasm with which they are presently campaigning for their “reproductive rights.” The campaign for “homosexual” rights is equally specious and ridiculous.

Averthanus L. D’Souza