Section 377: A legal incarnation of travesty

(My column in Mint Lounge, December 03 2016)

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As Delhi celebrated Pride last weekend, I was reminded of Siddharth Dube’s memoir, No One Else, which recounts the stigma suffered by his generation of men who were born homosexual. Dube grew up in affluence in the 1970s, studied at the Doon School, and went to university abroad. But the defining attribute of his existence, particularly as he worked in public health and confronted prejudice and ignorance on sexual issues that has had catastrophic policy implications, is one that cuts across class. Section 377 means he, like “disgraced” Aligarh professor Ramchandra Siras or the latter’s rickshaw-puller lover, is a second-class citizen in our country. The accident of birth into the upper class allowed Dube insulation; Siras, in his mid-60s, died tragically after strangers breached the privacy of his bedroom and filmed him with his lover in 2010. The rickshaw-puller too made an attempt to kill himself, but had to go back to pulling rickshaws because his children needed to eat.

Section 377 is not so much about intercourse as much as permitting instruments of the state a handle to persecute a section of its citizens. Blackmail, extortion, and intimidation by the police as well as by outsiders, who threaten to turn in flouters of this archaic law, are the sum of what Section 377 has achieved ever since the Victorians inflicted it upon our ancestors in 1860 in their quest to “civilize” us. Same-sex love, which was perfectly acceptable in Hindu society in previous times, was slapped in our face as yet another confirmation of our backwardness, justifying the need for imperial intervention in India. Our elite, embarrassed by the West, embraced their regressions, and let it stay on our law books after 1947. Meanwhile, back in Britain where these ideas were originally designed, they were thrown into the dustbin—without a colonized people to “civilize”, such tools of oppression served no purpose.

It is natural, then, that the generations that have followed Dube’s are today, in 2016, growing more and more impatient with this colonial travesty that masquerades as considered legislation. The reversal of that historic 2009 Delhi high court judgement, which struck down Section 377 as unconstitutional, by the Supreme Court four years later was a setback of calamitous proportions. The court reasoned that Section 377 was rarely exercised (with only 200 cases brought before it in all the history of the law), and that in any case all this concerns only a “minuscule fraction” of our population. The judges added that “those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes; and the people falling in the latter category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification.”

Leila Seth, the mother of a distinguished gay son, remarked that the argument that “justice based on fundamental rights can only be granted if a large number of people are affected is constitutionally immoral and inhumane”. The judges however transferred the onus of resolving this conundrum to Parliament. The Congress party has publicly declared support for decriminalization, but has not followed up vociferously enough—Shashi Tharoor was thwarted twice when attempting to introduce a Bill against 377 in Parliament, but his party benches were largely empty (disclaimer: I work for Tharoor). The Bharatiya Janata Party’s (BJP’s) Rajnath Singh, on the other hand, at once welcomed the Supreme Court strike-down, since to him homosexuality is an “unnatural act”. Finance minister Arun Jaitley has expressed views in favour of decriminalization. The essence is, however, that political consensus will take more time to construct. Moreover, since the “minuscule fraction” is not a political constituency, there is no electoral advantage in investing in their fundamental rights. Add to this that the current government is massively indebted to conservative factions, and a near-term resolution seems more and more distant.

That said, the fact is that the march of time means Indian courts and the state will inevitably have to face reality and those ideals we call justice and equality. Dube’s generation fought its battles at a time when they had few resources and practically no information about wider struggles around the world. Today men and women are less inhibited and more empowered in the Internet age, and the fight for fundamental freedoms will continue. As for claims that homosexuality is against Indian culture, there is plenty to show that this was hardly the case, besides which the Internet has allowed for the successful pursuit of same-sex relationships without the nose of the state getting in the way. Of course the irony is that while the BJP has taken a position against permitting gay citizens the right to live their lives in all its natural fullness, during the 2014 election, ads soliciting votes for Narendra Modi appeared on the gay dating app, Grindr.

The party was evidently embarrassed. The lesson, though, is that while such embarrassments are momentary, one day, when justice has prevailed, many will be left struggling to reconcile their past objections with what is right, and to answer for defending antiquated fallacies. Upholding an oppressive tool of colonial vintage against sections of society who have a right to lead complete lives without fear of persecution and stigma is what the debate on Section 377 boils down to; and to all who can see the bigger picture, the side they must pick should be clear.

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