Section 377: A Vicious Circle of Discrimination and Violence

Parnal Chirmuley

While mainstream Hindi cinema does not necessarily reflect political sensitivity to gender or class issues, or to minorities of any kind, there is a line that we have all often heard in Hindi films: ‘Ab duniya ki koi taaquat hamein ek doosre se juda nahin kar sakti’. This was a challenge to all social forces that impeded love – class, caste, region, religion, language.

Earlier this month, the Supreme Court of India under Justices Singhvi and Mukhopadhyaya became one of those forces. This verdict, overturning the Delhi High Court judgement of 2009, which decriminalised homosexuality, has come as a body blow to all those who love ‘differently’. Honour killings, khaap panchayats, violent anti-Dalit campaigns against intercaste marriages, and the bogey of ‘love-jehad’ have already reminded us that love is serious business. Love continues to be buffeted by ugly forces that use the law and often exceed and abuse the law even today, and this has happened again.

So whose worldview has the latest Apex Court judgement upheld? This is a bunch of religious and right wing groups [such as the Krantikari Manuvadi Morcha, Trust Gods Ministry, Apostolic Churches Alliance and Utkal Christian Foundation, All India Muslim Personal Law Board (AIMPLB), Joint Action Council, Kannur (JACK)], B.P. Singhal, the BJP ideologue and former Rajya Sabha member (now deceased), S.K. Tizarawala (a representative of Baba Ramdev), all led by an astrologer, Suresh Kumar Koushal in challenging the Delhi High Court ruling.
I would like to first address some of their objections to the decriminalisation of homosexuality before I go to the judgement which has declared scores of those among us who love ‘differently’ to be criminals, worthy of being imprisoned for life. Yes, that is what Section 377 of the IPC does (Section 377, Unnatural Offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1 [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine).

There are many things that are said about homosexuality. That it is ‘unnatural’ or ‘against the laws of nature’, against traditional values, not sanctioned by religion, that it is a disease, being among the foremost. I think it not very helpful to simply ask – what is ‘natural’ / who will decide what is ‘natural’? Human beings have proven for millennia that they are not a part of a fluid continuum that starts with the amoeba – therefore it is no argument to point to animals and say they don’t do it. For one thing, homosexual activity is quite common among many animals, and for another, animals do not use contraception, they do not make war, and they do not organise elaborate social systems of oppression and subjugation for appropriating surplus either. I think it is more useful to ask, why, when almost all cultures had people who were other than male or female, do we now have such a strict demarcation of what it means to be male or female? In almost all cultures, same-sex relationships have existed and even been accepted. Why is homosexuality spoken of as a threat to ‘the family’ as an institution? The answer can perhaps be found in reading between the lines in the ‘homosexuality as unnatural’ argument – the anxiety around this form of love really centres round the question of the reproduction of labour. There is plenty of historical evidence that tells us that there has always been a wide spectrum of expressions of gender identity, of love and bonds between all genders, and even changes in gender. Gay sexuality therefore exists along a continuum. Many ancient mythologies valued the ‘two-spirit’ed (in most Indigenous American tribes), many acknowledged that all beings have both elements (Ardhanarishvara), and many more wove stories around cross dressing (for instance, Arjuna as Brihannala, Vishnu in the garb of Mohini pursued by Shiva to then give birth to the deity Ayyappa) which are manifest to this day (the Kottankulangara Devi temple in Kerala, where even today men come to the temple dressed as women, with wives and children in tow, to meet goddess Bhagavathi in a festival called Chamayavilakku, meaning ‘make-up lamp’). In almost all pre-capitalist societies, homosexuals were not even defined as a separate category, let alone singled out for criminalisation. This segregation of fluid gender and sexual identities is a fairly recent phenomenon. Some of its legal history goes back to, as one of other instances, King Henry VIII of Britain (who married six times in order to procure a male heir) who introduced the ‘Buggery Act’ in 1533 – criminalising non-procreative sex. Many efforts across history to criminalise homosexuality (often described as ‘sodomy’, thus only mistakenly and only for a short while leaving women out of its purview) are deeply linked with the organisation of the family as an institution to reproduce labour, usually at below subsistence wages. John D’Emilio has summed this precisely: “on the one hand, capitalism continually weakens the material foundation of family life, making it possible for individuals to live outside the family, and for a lesbian and gay male identity to develop. On the other, it needs to push men and women into families, at least long enough to reproduce the next generation of workers. The elevation of the family to ideological pre-eminence guarantees that a capitalist society will reproduce not just children, but heterosexism and homophobia. In the most profound sense, capitalism is the problem.” (in ‘Capitalism and Gay Identity’, in Making Trouble: Essays on Gay History, Politics, and the University, Routledge, New York, 1992). This is also the basis for the idea of filial and romantic love cited in unions sanctioned by religion in all cultures. Colonisation as an economic process premised on hard labour, ensured partly also through the family, saw laws exported to the colonies as well. And we got Britain’s anti-sodomy law in 1860, as written by Thomas Babington Macaulay. This (and instances quoted above) makes nonsense of the right wing argument that homosexuality is somehow ‘foreign’. It is the criminalisation of homosexuality in India (as instituted under colonial rule) that is, in fact, ‘foreign’.

This law was not – and is not – merely a matter of legal theory. The impact of this law on the lives of the lesbian, gay, bisexual, transgender (LGBT) community has been simply brutal. The constant fear of being discovered, then hauled up by officers of the law, beaten, tortured, raped, the daily stories of ridicule and harassment in institutions, workplaces, the street – this constitutes reality for those that this law segregates for penalisation. These are human rights violations. This is a simple sentence, but a crucially important one. So if the mandate of the constitution is protecting and defending the human rights of all under its purview, irrespective of caste, creed, gender or sexual orientation, it was the dire need of the hour to read down a law that made it possible and terribly easy for the coercive apparatus of the state to violate these rights. This is what the Delhi High Court did in 2009. It ruled that Section 377 violates the right to protection of life and liberty (Article 21 of the Constitution of India, 1949), right to freedom of speech (Article 19), prohibition of discrimination (Article 15), and equality before the law (Article 14). This was a big step in the direction of dignity for the social section that had so far been deemed criminal. The verdict was hailed widely. Many ‘came out’ for the first time, to their families, friends, colleagues, and neighbours in the context of the decriminalisation of homosexuality and sought to live a life of hope. In one fell swoop, the 11 December 2013 judgement not only turned the clock dangerously back, but also set the field open for the same pattern of fear, discrimination, and violence.

We can now also look at some of the reasons why this judgement is so problematic. First, the role of the judiciary and the importance of the separation of (legislative and judicial) powers in safeguarding fundamental rights in a modern democracy are of issue in this case. In recent debates in this context, the term ‘constitutional morality’ has been used. This principle was also at the heart of the Delhi High Court judgement. It meant that the justice system has to be guided not by public or popular morality (because it is often a reflection of the normative values of the majority of the population), but by values enshrined in the Constitution (as represented by, among others, also the four Articles mentioned above). If we take the example of untouchability, we will see that while it was socially widely accepted for a long time, the Constitution prohibited it as a violation of fundamental rights that it had to safeguard. As Justice Shah (who read down Section 377 in the landmark judgement of the Delhi High Court in 2009) has said, ‘The very purpose of fundamental rights is to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities, and establish them as legal principles to be applied by the courts. It is the job of the judiciary to balance the principles ensuring that the government on the basis of numbers does not override fundamental rights. [...]In case of a moral legislation, when it is being reviewed by a Constitutional court, then the rule of ‘majority rules’ should not count, because if the issue of morality is to be decided by the majority, as represented by the legislature and Parliament, then the fundamental right has no meaning. It is to be decided on the basis of Constitutional values and not majority rule’. (Indian Express, 22 December 2013)

The Apex Court judgement under Justices Singhvi and Mukhopadhyaya can therefore be said to have set a dangerous precedent. While this bench has upheld a mode of judicial activism in the past, it has chosen not to exercise constitutional morality (that is, upholding fundamental rights, which is its constitutional mandate) in this case. It has stated that it is the legislature which has the right to make and amend laws, and not the courts, and in that sense it has abdicated from its responsibility to uphold fundamental rights under all circumstances. A related and more urgently worrying aspect of this judgement is the fact that this bench holds the LGBT community to be only a ‘miniscule fraction of the country’s population’ – this, for the bench is the reason to not uphold fundamental rights of all, and equality of all before the law. This clearly contradicts the backbone of Indian democracy which is rooted in the separation of powers (executive, legislative, and judicial) – this means that under majoritiarian rule, a government can pass a law that violates certain rights of a minority and the courts will simply abide by them on the grounds that it is the legislative arm that makes the laws. The question arises, who will then uphold what the Constitution enshrines? So if retrograde laws are formulated, then will it not be binding upon the courts to test these laws against the framework of the Constitution and read them down on the basis of the values upheld in the Constitution in order to protect rights of the people, even those who cannot access or activate legal processes? By way of this recent ruling, the courts are saying that it is not binding upon them. Thus all citizens, particularly minorities (gender, religious, linguistic, ethnic and other minorities) are now at risk of having their rights violated indiscriminately while the courts will be required to look on.

Further, the only case law that this bench took into account to decide on this matter looks at non-consensual sex, thus ignoring the question of consent between two adults. It also ignores the right to privacy. The court holds that Section 377 is applicable irrespective of age and consent, that it criminalises ‘certain acts’ (that is, not identities, orientation or a particular people) performed by same- and opposite-sex couples that can be classified as ‘carnal intercourse against the order of nature’, thus by implication criminalising sexual conduct regardless of sexual orientation and gender identity.

More importantly, it argues that respondents did not furnish particulars of harassment and assault of sexual minorities by public authorities and ignores the substantial data and proof furnished by Naz Foundation (in the form of affidavits) on the violation of the rights of members of the LGBT community. This also has dangerous implications – this will mean that those who face discrimination, torture, and even rape at the hands of the police will never be able to testify with respect to crimes committed against them, because, since the law already declares them to be criminals in the first place, testifying or asking for their rights will further endanger their safety and dignity. While stigma attached to sexual violence is recognised in rape trials, it is ignored in cases involving members if the LGBT community. In sum this judgement runs the risk of unleashing the same cycle of discrimination and violence against members of the LGBT community.

Let us come to a more hopeful conclusion. In some of history’s most glorious struggles for dignity and rights, such as the October Revolution in 1917, gay sexuality was decriminalised, with openly gay members serving in government under Lenin. In India, as elsewhere, the LGBT movement has grown, among other things, in sharing space with the women’s movement by thinking through issues of sexuality, the family, and the law. Today, there is a great deal of acceptance in families for gay sexuality. In fact, one of the parties in the group supporting the Delhi High Court judgement of 2009 is a group of Parents of LGBT persons who have argued also that 377 is against family values because it criminalises who their children are. In all protests that set the streets alight in the wake of this judgement, it was not only ‘affected parties’ that marched. In the fight for the dignity of women, workers, and other disempowered and marginalised voices, the LGBT community lends it proud voice of protest. Yes, this is a moment of alarm, and yes, this is also a moment of great hope, because we are all responding to each other’s call for solidarity.