Published on February 27, 2014
Section 377 “Langotiya yaar” may not have the same friendly connotation anymore. Section 377 concerns ‘Unnatural offences’ and is a section of 2 sentences in the Indian Penal Code, which came into force in 1862. The Constitution of India came into effect in 1950, and the 80 year old IPC was incorporated into it without changes. Many amendments have been made in the IPC since then, but 377 remains as it was. Even though the United Kingdom and Ireland themselves have decriminalised homosexuality decades ago. Section 377 declares those “consenting adults” who have “intercourse against the order of nature” as criminals. Intercourse against the order of nature entails any penile non-vaginal insertion between consenting adults and/or animals. Everything in private, ofcourse. Basically any act, which doesn’t lead to reproduction, is criminal, even if done by consenting adults in a personal space. Even mutual masturbation, between males and/or females. The context in which 377 has become important is the implications it has on bisexuals, gays, lesbians and transgendered people, and some recent
critical court judgments, all brought into public attention by activists and the media. The movement to fight against criminalisation, however, is older. Sporadic underground newsletters preceded the first public movement which was in the form of protests by the Siddharth Gautam led AIDS Bhedbhav Virodhi Andolan, and the original court case against 377, in the 1990s. Their historic publication called “Less than Gay” put the issue in the perspective of violation of human rights, and discrimination. There is some literature on the same theme – “Lihaaf” by Ismat Chugtai written, ironically, in 1940s Pakistan, has been loosely weaved into the new Hindi movie “Dedh Ishqiya”. It is about a woman, who is ignored in marriage by a homosexual husband, and finds comfort in another woman’s love. The socio-political discussion in India about sexuality is an incoherent noise, because everyone has an ‘opinion’, and everyone thinks they are ‘right’. And the same people might hypocritically accept behaviour which is totally contrary to their ‘morals’. It is frowned upon when heterosexual couples hold hands in public places in many big and small towns, but it is acceptable for young men to hold hands, or walk with their hands around each others’ waists, in general. The issue around 377 is obviously larger, relating to the inherent double standards regarding sex in India. We might abuse our wives and then blackmail the family, rape little girls (or boys), have awkward silences with our teenage children when a condom advertisement is on television, marry-off minor girls to their maternal uncles, even hesitate in saying ‘sex’ loudly, but we Indians are obviously having a lot of sex, if our population of 1.3 billion could be any explanation. 377 is a British law, and not one which was included in the IPC because of Indian cultural traditions. Thus many right wing political leaders and loud common people are wrong when they say that 377 arises out of Indian culture. Tolerance and inclusiveness are two of the basic tenets of Hinduism, the largest religion in India. Apart from the Kamasutra and the Khajuraho sculptures, there are many other examples of this acceptance. The Konark temple depicts mutual fellatio and orgy-
like scenes, God Ardhanarishwar and the ling are representations of the perfect communion of the female and male forms, beyond sexuality. The dual-gendered God Ayyappa is worshipped by the hijras. Though homosexuals and trangenders may not have been liked in society, they were never criminals, as they are now. Other religions like Buddhism also have similar examples. What is very hard to understand is how much Indians, from the common man to the political class, make it their business to think about, discuss, and try to dictate, other people’s personal lives. It seems unbelievable that gays or lesbians would spend so much of their own time thinking only about their sexual orientation. They have professional and personal ambitions of their own – their daily bread to earn. If Section 377 is upheld, then they are criminals who could be sent to jail for upto 10 years. Just because of who they are. If they live their private lives according to their wants, they are committing a crime. It is as if their life is defined by, and ends at, being gay. How then can they be expected to be contributing members of society, if they live in constant fear? There are closet homosexuals, who know that they are not attracted to the opposite sex, who enter a heterosexual marriage unwillingly, and in the process, potentially traumatise even their spouses, throughout their lives. AIDS control programs are negatively affected because gays would not volunteer for tests, and go underground. And this is not only an educated middle-class construct – there have been instances like the ostracised marriage of 2 women constables in Bhopal (1987-88) – homosexuals aren’t just people bored with the opposite gender. The Delhi High Court’s 2009 judgment struck down Section 377 saying that it was in violation of Article 21 (Right to Protection of Life and Personal Liberty), Article 14 (Right to Equality before Law) and Article 15 (Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth) of the Constitution, and decriminalised private sexual acts between consenting adults. The Supreme Court in December 2013 just
indicated that it was not the Judiciary’s business to change a Law, and it was in fact the prerogative of the Legislature. Though there have been other similar amendments by courts which have not been reverted. Practically, there are other comprehensive laws governing child abuse, rape and sodomy (all supposedly being incorporated in 377), which makes 377 redundant. In principle, the Indian Constitution is, at its core, Inclusive, and those who are ‘different’, however few they maybe, are treated equally. Section 377 may just be one issue affecting a fraction of India, but how we tackle it, as a people, and as a government, is very important in growing as a cohesive, tolerant society. - Soham Adla
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