Students Islamic Organisation of India (S.I.

O), Kolkata

Gay? NO.
India being a welfare state has gone beyond its traditional obligations to administer the nation. It
is also concerned with the beneficial interest of the mass such as public safety and protection of
health and Morals.Right to Privacy is not an absolute right.
"The US Supreme Court has recognized the centrality of the family. In an opinion on the right of
privacy, Justice Harlan said:

"The right of privacy most manifestly is not an absolute. Thus, I would not suggest
that adultery, homosexuality, fornication and incest are immune from criminal
inquiry, however privately practiced ... but the intimacy of husband and wife is
necessarily an essential and accepted feature of the institution of marriage, an
institution which the State not only must allow, but which always and in every age it
has fostered and protected."1

In Vijaya v. Chairman and Managing Director,Singareni Collieries Ltd2, it was stated that
Subjecting an individual to compulsory HIV testing was not unconstitutional even though it
infringed the individual’s right to privacy because the state also had an obligation under the
constitution to take steps to improve public health.

Section 377 of the Indian Penal Code deals with the unnatural carnal intercourse against the order
of nature. Consent of the parties is immaterial and the party consenting is equally liable as an
abettor. The Unnatural offences discussed under this section are Sodomy and Bestiality.

Sodomy may be either Homosexual or Heterosexual. In case where the parties are of the same
sex, it will be termed as Homosexual and if the parties are of the opposite sex it will be called as
Heterosexual.

"The physiology of the rectum makes it clear that sodomy is unnatural. The Inward
expansion of the rectum during anal intercourse frequently tears the rectal lining,
resulting in spasms, colitis, cramps, and a variety of other physical responses.
Furthermore, sperm can readily penetrate the rectal wall (the vagina cannot be so
readily penetrated) and do massive immunological damage, leaving the body
vulnerable to a bewildering variety of opportunistic infections." 3

Since there is no systematic study or survey regarding the Diseases Related to Homosexuality
in India, we cite the survey conducted in some countries.
Diseases Related To Homosexuality
1
Poe v. Ullman; 367 US 492, 52, n.3; 1961;
2
Vijaya v. Chairman and Managing Director,Singareni Collieries Ltd, AIR 2001 AP 502
3
(David Ostrow et al, eds., “Sexually Transmitted Diseases in Homosexual Men”, New York, Plenum Medical
Book Co., 1982
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1. Mental Illness

A New Zealand study which followed 1007 individuals since birth found that at the age of 21, the
28 subjects classified as gay, lesbian or bisexuals were significantly more likely to have had
mental-health problems than the 979 classed as heterosexual.4

2. Kaposi Sarcoma

The International Journal of Dermatology explains why homosexuals’ behaviors place them at
high risk for this disease, which affects the mucous membranes and the skin of its victims:
“In this high risk group [the gay male population], the predominant portal of entry of free and
cell-bound HIV as well as the brunt of associated cofactors and opportunistic infections can be
traced to both ends of the gastrointestinal tract (mouth and anus) and also the genitalia, which
happen to be common sites for KS lesions in addition to their lymphatic watersheds.”5

3. Hodgkin’s Disease

Homosexual men suffering from HIV/AIDS also suffer from other cancers and lymphomas. One
study published in the Annuls of Medicine noted the connection between homosexual AIDS
patients and Hodgkin’s disease. The study concluded, “An excess incidence of Hodgkin’s disease
was found in HIV infected homosexual men.” The Journal of Clinical Oncology published a
study that further supports a connection between homosexual male AIDS patients and Hodgkin’s
disease.6

4. Anal Cancer

The Journal of the American Medical Association also published similar findings:
"Epidemiological studies have shown that risk factors for anal cancer include homosexuality,
history of receptive anal intercourse, presence of anal condylomata, and smoking." 7

5. Impairment of Immune Response

Several researchers have concerned themselves with the immune dysfunction consequent to the
direct entry of semen into the bloodstream by means of anal intercourse. Joseph Sonnabend has
argued that repeated exposures to semen combined with various sexually transmitted disease
pathogens result in impairment of immune response. Robert Root-Bernstein concluded that
exposure to semen through anal intercourse can initiate lymphocytotoxic autoimmunity. Another
researcher who recognizes the pathogenic effects of semen is Eleni Papadopulos-Eleopulos. 8

4
“Homosexuality and Mental Illness” by J. Michael Bailey.
5
International Journal of Dermatology
6
Annuls of Medicine and Journal of Clinical Oncology
7
Journal of the American Medical Association
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6. AIDS

The CDC reports in its June 2000 HIV/AIDS Surveillance Report that men who have sex with
men (MSM) account for the majority of AIDS cases in the United States.

AIDS CASES BY EXPOSURE CATEGORY

Male Female Total

Men who have sex with men 348,657 - 348,657
Injecting Drug Use 137,650 51,592 189,242
Men who have sex with men and inject drugs 47,820 - 47,820
Hemophilia/coagulation disorder 4,847 274 5,121
Heterosexual contact 27,952 50,257 78,210
Recipient of blood transfusion,
blood components, or tissue 4,920 3,746 8,666
Risk not reported or identified 48,343 19,042 67,387

* Includes 3 persons whose sex is unknown.

Numbers are based on AIDS cases reported to CDC through June 2000.9
Hence we see that protection and safety of Public Health and Morals is one of the important
duties of the state and in order to do so the state can transgress the right to privacy of an
individual.

Offences like Adultery, Causing Miscarriage etc. are unlawful irrespective of its taking place on
a consensual basis. Similarly, Unnatural Offence that is technically unlawful, being against the
order of nature, cannot be rendered legitimate simply because it takes place on a consensual
basis.

Adultery as defined in Section 49710 states that:

Whoever has sexual intercourse with a person who is and whom he knows to have reason
to believe to be the wife of another man, without the consent or connivance of that man,
such sexual intercourse not amounting to the offence of rape, is guilty of the offence of
adultery, and shall be punished with imprisonment of either description for a term which
may extend to five years, or with fine, or with both. In such case the wife shall not be
punishable as an abettor.

8
(Department of Medical Physics, Royal Perth Hospital, Perth, Western Australia), author of “Looking Back on the
Oxidative Stress Theory of AIDS” published in Continuum volume 5, number 5 - mid-winter 1999.
9
CDC semiannual HIV/AIDS Surveillance Report.
10
The Indian Penal Code.
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In case of Adultery both the parties to the crime have their consent. In fact the woman is always a
willing party and consenting party to sexual intercourse.

Causing Miscarriage as defined in Section 31211 states that:

Whoever voluntarily causes a woman with child to miscarry, shall if such miscarriage be
not caused in good faith for the purpose of saving the life of the woman, be punished with
imprisonment of either description for a term which may extend to three years, or with
fine, or with both; and, if the woman be quick with child, shall be punished with
imprisonment of either description for a term which may extend to seven years, and shall
be also liable to fine.
Explanation:- A woman who causes herself to miscarry, is within the meaning of this section.

What harm is done if the activity is between consenting adults?

The fact that two adults consent to an action doesn't make it morally right or socially acceptable.
The "harm" is that such reasoning leads us down a very dangerous and permissive slope to the
detriment of the common good and the spiritual impoverishment of the individuals involved.
After all, two consenting adults can engage in drug use, prostitution or other immoral activities.
In other words, the determination of the morality of an action is found in the act itself and not in
the consent of the people involved.

Homosexuality means warring against nature’s order, making human beings use their bodies in a
way no animal, domestic or wild; no fowl, no bird of any description, no reptile would even try.
It is repulsive for respectable human beings who know what their reproductive organs were
meant for, to indulge in any experiment that is contrary to nature’s order. Perverts, deviants,
psychopaths and all such will always find excuses to explain their bizarre relationships. To
endorse sodomy and bestiality so as to avoid what perverts call ignorance, prejudice, hatred and
religious fanaticism will be throwing the doors open for more devastating plagues to join
HIV/AIDS now ravishing many homes.

On the basis of the facts it can be corroborated that acts like Adultery, Causing
Miscarriage, sex determination of the Foetus, etc which are technically unlawful cannot be
rendered legitimate even if it is done on consensual basis. Similarly, an act done under
Section 377 of the Indian Penal Code cannot be rendered legitimate even if done on
consensual basis.

Offences like Paedophilia, Necrophilia, Bestiality, etc comes under the purview of Section 377 of
the Indian Penal Code. Therefore deletion of the said section can open the floodgates of
delinquent behavior and be misconstrued as providing unbridled license for the same.
11
The Indian Penal Code.
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The absence of a preventive ordinance like Section 377 of the Indian Penal Code is the stuff of
which legal nightmares are made. Absence of such ordinances gives to homosexuals and takes
away from society at large. They take away, among other things:

(1) The right of parents or school districts to control the moral calibre of the person who
teaches their children;
(2) The right of an employer to determine whether an applicant’s moral character will affect
his job performance;
(3) The right of Temples, Mosques, Churches, Gurudwaras and other religious entities to
exclude, or refuse to hire, someone whose lifestyle is contrary to their religious
convictions.

Deletion of Section 377 of the Indian Penal Code, technically provide legal protection for more
than just homosexuals. They typically provide protection to anyone, regardless of sexual
preferences. Any learned judge would find that such laws give protection to a large number of
sex criminals. As for example, the possible protected behaviors under the absence of Section 377
of the Indian Penal Code:

* A convicted child molester12, homosexual or heterosexual, could sue a day-care centre that
refuses to hire him, claiming discrimination on the basis of his “sexual orientation”; deletion of
Section 377 of the Indian Penal Code would thus protect behavior declared criminal under state
law.

* A motel owner could be sued if he refused to rent a room to an unmarried couple 13. This would
be discrimination in the use of “public accommodations”. This would also be discrimination on
the basis of “sexual orientation”, in this case their sexual preference for unmarried people or for
people married to someone else. Deletion of Section 377 of the Indian Penal Code would be
protecting behaviour declared criminal under state law.

* An insurance company could be sued for refusing to extend health insurance benefits to the
sodomy partner of a homosexual. The insurance company would be discriminating on the basis
of “sexual orientation” by refusing to extend coverage to “spouses” because of their sexual
preferences. Since Sodomy would not be an offence after deletion of Section 377 of the Indian
Penal Code.

12
Section 377 of the I.P.C
13
Nivalink-Group Reservations, www.nivalink.com
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* A landlord who refuses to rent14 or sell a facility to a person running a house of prostitution
could be sued for refusing to rent or sell housing based on the person’s “sexual orientation”. Yet
prostitution is a crime under (state) law.

* A bank that refuses to loan money to moviemaker who enjoys making and selling child
pornography15 would be discriminating against the moviemaker on the basis of his “sexual
orientation”. Yet the making and selling of child pornography is a crime under most state law.
Deletion of Section 377 of the Indian Penal Code could protect behaviour declared criminal
under state law.

Thus it is proved beyond reasonable doubt that deletion of Section 377 of the Indian Penal
Code can open the floodgates of delinquent behavior and be misconstrued as providing
unbridled license for the same.

Every society has a variety of moral principles. Without these moral principles a society cannot
survive. Society can use the law to preserve morality.

Section 377 is that law which strives to preserve the morality, rich culture and traditional heritage
of India. Repealing it would pave way towards indulgence in unnatural sexual activities against
the order of nature which would in turn pollute the entire society by encouraging others to
indulge and abet in this crime.

Homosexuality in the household can also be detrimental to the upbringing of the children, who
are the building blocks of the nation.

Homosexuality is essentially antifamily. It encourages promiscuous sexuality, a self-centered

morality, and socially irresponsible behaviour that exact huge costs from society. The law has
every right to discourage people from entering into paths that are demonstrably destructive, --
physically and psychologically -- first to themselves, then to society itself.16

Indian society strongly disapproves of homosexuality and the disapproval is strong enough to
justify it being treated as a criminal offence even where consenting adults indulge in it in private.

Sexual orientation of a parent is critical to the upbringing of a child. Society is based

on the ideal of having heterosexual parents. Children who are raised in ‘alternative
family lifestyles', are more likely to engage in drugs and have negative feelings towards
their parents and themselves, than children raised by normal families. To allow an act

14
Nivalink-Group Reservations, www.nivalink.com
15
Section 292 of the I.P.C
16
Bishop Thomas J. Tobin
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such as indulgence in unnatural sexual activities to continue, it displays that we have

blatant disrespect for our children's future.17

Religion plays an important role in the lives of the individuals and groups. The law of the land is
also enacted keeping in mind the benefit of the society at large. India is multicultural country. It
is the abode to the Hindus, Muslims, Christians, Jews, Parsis, Sikhs, Jains, Buddhists, etc.
Indulgence in unnatural sexual activities goes against the basic tenets of the faiths of the majority
of the people of India.

Hinduism:
Scriptures like Manusmriti does not accept homosexuality. The Law of Manu states that any
person indulging in unnatural sex shall be fined with 24 panas18
Islam:
Islam clearly considers homosexuality to be sinful. Homosexuality is described in Islamic
scripture as a profound mistake. According to Islamic believes, homosexuality is not within
human nature, but people become gay because of their environments. 19

Christianity:
There are many Christian congregations that are strongly against homosexuality. The Bible
refutes homosexuality. 20
“It is not my opinion–it is the verdict of the sastra[scripture]. Opinion–what is the
value of opinion when the people are like dogs and asses? What is the use of taking
the opinion of an ass? This vox populi–taking the opinion of the public–is degrading
modern society. If the public is composed of drunkards, smokers, meat eaters,
gamblers, and woman hunters, then what is the value of their opinion? Why take the
opinion of fourth-class men? What Krishna says–that is the standard. Krishna is the
supreme, and His version is final. No other opinion is allowed. When I introduced
the principle “No illicit sex life,” I didn’t ask for opinions–”It must be done.” 21

Today the issue of decriminalization of homosexuality has arose in the pretence of

fundamental rights. Once homosexuality between adult consenting males is decriminalized
then the issue of Gay and Lesbian marriages would be raised. Once the Gay and Lesbian
Marriage is legalized then the issue of adoption of child would be raised. And all these
issues will finally lead to the corruption of the morals of the people in the society.

17
Debra Busher, an expert on child psychology, www.csun.edu/-psy453/harm_y.htm
18
The Law of Manu
19
The Holy Quran, Ash Sh’ara: 160-173
20
Genesis 19
21
Srila Prabhupada, Founder of International Society for Krishna Consciousness (ISKCON).

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Until now people have grown up looking at the heterosexual pairs and known them as to be
Mother-Father, Uncle-Aunt, Husband-Wife, Mr-Mrs, etc but what would be the condition when
two males start living together? Would they be called as Father-Father, Uncle-Uncle- Husband-
Husband, Mr-Mr, etc?

As it is already proved beyond reasonable doubt that indulgence in unnatural sexual activities
against the order of nature is polluting the entire society by encouraging others to indulge and
abet in this crime, Section 377, the law which strives to preserve the morality, rich culture and
traditional heritage of India, should not be repealed.

Dear Sisters/Brothers,
Please circulate this writing among your friends and relatives and make them aware regarding
the ills of homosexuality and the negative impact it will cause if S.377 of the I.P.C is repealed.
May Allah make us wise and understanding.
Jazakallah.

Sheikh Khurshid Alam,( B.A.LL.B IIIrd Yr, Deptt. Of Law, C.U)

District Secretary, Kolkata,
Students Islamic Organisation of India, ( www.sio-india.org )
[email protected]
Mobile: 9903670466

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