It's a large enough place that just about anything can happen Credit: Public Domain, https://commons.wikimedia.org/w/index.php?curid=150948

India’s offering an interesting example of how illogic can reign when societal norms change. This is not – not here at least – to say that any particular set of societal norms are better or even more moral than another. It’s just to point out that as we transition from one set of norms to another we can end up with some logic defying insistences along the way. For India seems to be on the verge of legalising same sex sexual relations, while the government is arguing that adultery must remain illegal. Leaving aside our own prejudices for a moment on either subject, it’s obvious enough that we could logically argue for one of two positions. Adults get up to whatever sex consenting adults desire to get up to. That is, adultery and gay sex should both be legal. Or we can argue – wrongly to my mind but still – that both should be illegal as it’s up to government and the law to monitor and control the morals of the populace.

The government on Wednesday submitted that dropping of adultery as an offence from the Indian Penal Code (IPC) will erode the sanctity of marriage and be detrimental to the “intrinsic Indian ethos.”

In an 11-page affidavit which will be taken up before a Constitution Bench, the Centre said the provision punishing adultery — Section 497 of IPC — “supports, safeguards and protects the institution of marriage” considering the “unique structure and culture of Indian society.” The government agreed to the thought that “stability of a marriage is not an ideal to be scorned” and striking down Section 497 would destroy the fabric of society itself.

Well, it’s a view, whatever we think of it. But then:

The Central government on Thursday urged the Supreme Court to not enter into matters of religious beliefs while deciding validity of Section 377 in the IPC, which makes homosexuality an offence irrespective of age and consent.

In his brief submission, Additional Solicitor General Tushar Mehta requested the Constitution Bench to steer clear of the matters of religion.

The government then goes on to argue that whatever the court decides – which will clearly be for legalisation – is just fine with it.

My view is that consenting adults get to do as consenting adults without the intervention of the law either or any way. Your view can differ, can indeed be anything you’d like it to be. But it is odd to see the argument in favour of the criminalisation of adultery and not of gay sex. In most other places, as those public mores have changed, the order has been reversed in the liberalisation.

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7 COMMENTS

  1. Well adultery necessarily involves a breach of trust, effectively a breach of contract. Gay sex does not, at least not necessarily.
    Adultery commonly threatens the wellbeing of children. Gay sex rarely so, if ever.
    So a logical explanation is possible. Whether breach of contract should be dealt with under criminal law or civil is another matter- If the breach of contract harms the populace at large then criminal is appropriate, otherwise not.

    • Government never acted against gay sex because it is a breach of contract but for other reasons. As we are currently in an era of a universally fatal and incurable disease primarily caused by promiscuous anal sex (sharing of hypodermic needles is secondary), government might assert a role, even in these days when the welfare state demands that we see all misbehavior through the eyes of the person committing it, whom we assign cuddly euphemisms (like “Dreamers”) when necessary.

      Also, two decisions may be “consistent” on the yardstick of liberty and “inconsistent” on the yardstick of promoting Christian lifestyle, or vice versa; that is, there is no absolute measure of consistency that does not depend on one’s goals for government.

      • Why’s it ok for a man to do a woman up the bum but not another man? And women insist that a man does, so they can tell their friends they’ve done “everything.”

        When a gang of guys watch a blue movie, why is it so important that the stud has to be sexy in a way that men will think is sexy? If straight men are so anti-dick, why does porn not hide the male genitalia entirely?

        There’s some inconsistency here. You and I may not be comfortable with gayness but that doesn’t give us the right to attack it.

      • But there is perfect consistency in your irrationality. I did not state that any particular sexual practice is ok or not ok, but that the law of past generations has banned some of them (including a man doing a woman up the bum) in order to limit the spread of diseases much tamer than AIDS.

        This is not an “attack [on] gayness” but since any attack was through ideas, I defend my right to “attack.” Whether I am not “comfortable with gayness” is not the issue. Separately, I have no opinion on what other men prefer when they watch a blue movie.

  2. Laws that are honoured solely in the breach thereof create a culture of contempt for the law. Adults are going to do adult stuff regardless of what the law says. The question is, is how prevalent is it? Is adultery a customary, preferred, alternative or minority behaviour?

    Insofar as law is a codification of public morality, the best test is what the Indian people think about adultery. If a substantial majority think that it is criminal, there’s your answer.

    • Well, that sums up current US politics: for instance, that we must accept Mexicans overstaying their visas, blowing off their court dates, and going on to vote illegally despite lack of any permanent commitment to the US or to assimilate, provided that enough people do it at the same time.

      Accept this, and the next step is a major political party trying to win elections by assembling a governing coalition based on misbehavior and excuse-making (and promising them ever more free stuff).

      Law is not merely a codification of morality, guided by how enough people feel about things; it is an attempt to define dangerous conduct, in order to redress it and ideally prevent most of it, whether or not we can hope to prevent all of it.

  3. I can’t see any inconsistency at all.

    The state of marriage is a legally-binding contract – breaking it carries civil penalties and, in India, criminal ones.

    Homosexuality is just a sexual preference.

    If the Indians want to maintain the strong social bonds of marriage, good luck to them. If any heterosexual or homosexual want to get married, they should note that breach of a partner’s trust is an offence…