WE have got it all wrong. India is a country where marital rape is not illegal, but having consensual sex within the confines of our bedrooms is. I mean the non-procreating variety of sex. Section 377 was invented by the British; they invaded India and left behind a legacy of prejudice with this draconian law. What the law states is pretty simple, “carnal intercourse against the order of nature” is a punishable offence. Now, let us dissect this further and highlight the various implications and understanding of this law. Now, no one knows what “order of nature” is. To me, the love of a man for a man or that of a woman for a woman and all permutations and combinations of genders and sexualities, is the order of nature. But in the legal parlance and interpretation of it, one could say that any kind of “carnal intercourse” which is non-procreatory, is against the order of nature.
Effect on the LGBTIQ community
How does this law affect the LGBTIQ (lesbian, gays, bisexuals, transgender, intersex, questioning) persons? When same sex people have sex, but their sexual relations don’t lead to a progeny, this section can be applied against them. While this law has not been used directly against LGBTIQ persons much, this is used as a tool to discriminate. This law is an open shop for extortionists. “I will tell the police you are gay, if you don’t give me money”, is the new trade secret. And no one wants to go to jail for making love. Do they? So they cough up money and allow the world to bask in the glory of their snatched dignity. Actually, being LGBTIQ has never been illegal. What’s illegal is the act of carnal intercourse against the order of nature. So, it is like saying, you can be what you want to be, but just don’t act on your desires. There is an old cliché that says “make love not war”, this one law stands against that cliché. I read the law as, “wage a war whenever you see someone making love”.
Again speaking about the order of nature, considering that this law is also called “unnatural sexual offenses act”, this law is not only about homosexuals having sex; it implies that it is “natural” when a couple can make a baby.” India has been famously infamous for its prejudice against infertile couples. The couples who don’t bear children are vilified and ostracised in our world. The man who doesn’t bear children is called a na-mard (impotent man/ sterile) and his wife can even seek divorce from him on these grounds. The woman on the other hand has to face spite from the community and is called baanj (barren) if she cannot bear children.
As mentioned earlier, the law in itself doesn’t discriminate against LGBTIQ persons. While the law stands against carnal intercourse against the order of nature, it doesn’t mention man having intercourse with a man explicitly. This means, that even if a man and woman have consensual sex without the intent or probability of procreation, they could be booked under this law. If we look at it very broadly, it would mean that heterosexual couples are all criminals under this law, because clearly men and women don’t just have peno-vaginal sex, and they for sure don’t look at ovulation cycles and have sex according to that! So is the law going to be enforced on heterosexual couples? Like, all of them? No. But it is used to victimise gay men by the very prejudiced society.
The bizarre enters the picture
A bizarre argument that is thrown at us is that people will start having a lot of sex if section 377 is removed. Sadly, the total amount of lust or love or affection is neither directly nor inversely proportional to the law. Those who wish to make love, shall still continue to do so in the confines of their bedrooms. Anyway, one cannot really say who is gay and who is not, nor can they say whether a person is straight or not. In my opinion, what Section 377 does is, it infringes on human life. It adds another layer of prejudice to our society that is already multi-flavoured. While laws alone cannot change societal mindset, the existence of such draconian laws is treated as an example of the deplorable state of affairs that we are in.
There are many cases of gay men being forced to marry women. One could scream foul and speak about women’s rights, but till there is a law like this, it will breed a culture where women are subjugated. The question here is not whether gay men should be punished, the question is, do we have a society where a gay man can be himself without being forced into a marriage, with a gender he would rather not.
Section 377 protects religious sanctimony?
How funny, that we rely on something that is not even Indian, to “protect” religious sanctimony. The law is remnant of the Victorian mindset that is draconian and wayward as compared to the texts and subtexts of Indian mythology. We never really had a closed culture, and definitely not a closed mind. At least, in Hindu scriptures, we have many interpretations of gender interchangeability, homosexuality, bisexuality, intersex etc. While it was never termed sexuality per se, the scriptures are peppered with such understated examples if you look deeply. With the British invasion, not only did India get bereft of her wealth, but also of our open minds.
Another absurd argument I have heard is, if everyone turns gay, wouldn’t the population come down? So Section 377 keeps a check on them, goes the argument. Now, this is one clichéd statement that has no scientific validation. How do people turn gay? Which turn is that? Right or left? Jokes apart, people don’t turn gay or straight, they are but broadminded or narrow.
Homosexuality and other forms of sexualities apart from heterosexuality, is found in over 450 species of animals, humans are just one of them. And anyway, how does a law stop anyone from having sex. Are we going to doubt every two men who hug each other and arrest them? I have been gay since birth, and out as gay since a decade and a half, and I can say for sure that the general public cannot tell who is gay and who is not, just as one cannot tell who is straight and who is not.
Again to reiterate, no one chooses a life where they would be discriminated, will have to “come out”, fight for equal rights and acceptance. Being gay or lesbian or bisexual is not a choice people make, yes, some make the choice of being open and outspoken about their sexuality and gender.
With great oppression comes the stirring of big movements. Section 377 is a tool for oppression. The British left their sins for us in the form of Section 377, and they themselves got rid of it. Time that we eliminated Section 377 from our lives and law books too!
Humein chahiye azaadi, hum nahi hai apradhi (We demand freedom, we are not criminals).
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Harish Iyer
The writer is an active voice for child sexual abuse and equal rights for women and the LGBTIQ among an ensemble of other causes. He is just in his early 30s and his life has inspired a biography and 2 critically acclaimed films – national award winning I AM and Amen. He blogs at www.hiyer.net and tweets as @hiyer.[/column]