There’s a line from the movie Philadelphia that I recollect every time I’ve discussed homosexuality, the AIDS epidemic, legality and so on. In the movie, as those who’ve seen it are aware, there’s a scene in the courtroom where Denzel Washington, in his cocksure, charismatic charm, says:
“Everybody’s thinking about sexual orientation, sexual preference...whatever you want to call it. Who does what to whom and how they do it. So let's get it out in the open. Let's get it out of the closet. Because this case is not just about AIDS, is it? So let's talk about what this case is really all about: The general public's hatred, our loathing...our fear of homosexuals.”
On the 11th of December, 2013, the Supreme Court of India “set aside” a landmark judgement of the Delhi High Court pertaining to Section 377 of the Indian Penal Code. The Delhi HC verdict, which had effectively decriminalized consensual same-sex relations among adults covered under Section 377 of the IPC (effectively: homosexuality; read the full verdict here), was thus rendered unconstitutional by the Supreme Court. The assumption, therefore, is that those who engage in sex as stipulated in Section 377 can be tried under it (the description is given below). Section 377 was enacted by Lord Macaulay in 1860, and it states:
377. Unnatural Offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.
Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.
The Delhi High Court’s judgement, in decriminalizing consensual same-sex relations, thus, was truly bold and revolutionary; and it is pertinent to quote its verdict at length:
“130. If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of ‘inclusiveness’. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society nurtured over several generations. The inclusiveness…is manifest in recognising a role in society for everyone. Those perceived by the majority as ‘deviants’ or ‘different’ are not on that score excluded or ostracised.”
“131. Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination…It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.”
“132. We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution…[and] by ‘adult’ we mean everyone who is over 18 years of age and above.”
It added that the provisions of Section 377 continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors (those below 18 years of age) as they “would be presumed to not be able to consent to a sexual act.” This clarification, the High Court held, will hold until Parliament chooses to amend the law, and enact the recommendation of the 172nd Law Commission Report which sought to decriminalize homosexuality [see Section 1.2.1.Part I, (3)].
The two-member bench of the Supreme Court, however, ruled that: “Section 377 IPC does not suffer from the vice of unconstitutionality [and]…that the said section  does not suffer from constitutional infirmity.” It thus concludes that declaration made by the Division Bench of the High court is “legally unsustainable”, and puts the ball firmly in the legislature’s [Parliament’s] court, stating: “Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same.”
It further argues that “even after 60 years of independence, Parliament has not thought it proper to delete or amend Section”, the section, therefore, remains valid. The Additional Solicitor General, P.P. Malhotra, in an affidavit by the Ministry of Home Affairs, which:
“…had opposed decriminalisation of homosexuality and…recommended retention of Section 377 IPC because the societal disapproval thereof was very strong. [And] that the legislature, which represents the will of the people, has decided not to delete and it is not for the [Delhi High] Court to import the extra-ordinary moral values and thrust the same upon the society”
It must, here, be remembered that the Delhi High Court decriminalized homosexuality specifically within the Section 377, upholding it in cases of sexual assault – against women, children and men. However, this ‘severability’ is something which the Supreme Court didn’t agree with (read the full judgement here).
Of course, in light of the Supreme Court’s judgement, Denzel Washington’s quote from Philadelphia is exceedingly significant; especially since many have dubbed the Supreme Court’s ruling as “procedural homophobia”. Others, too, have criticised it for being “regressive” and taking us back to the 19th century.
My criticisms of the Supreme Court judgement, however, are different: they are concerned with the judgement being situated in the larger discourse of what I’ve argued is the patriarchal moral-political economy. Although the Supreme Court’s concern is, largely, constitutional and legal, constitutionality is not a textual problem; it’s also a socio-political one. The Delhi High Court verdict was revolutionary precisely because it helped a social group articulate its political and social rights – and, that this social group is not necessarily a “sexual minority”. My other concern is that there are several logical fallacies riddled in the judgement, through which, the Supreme Court effectively sanitizes and, thus, absolves itself of this responsibility from the larger political movement of gender rights.
I shall elaborate on these arguments throughout the course of this essay – and its follow up.
The Supreme Court ruling which reinstates Section 377 of the Indian Penal Code, and thereby criminalizes “voluntary” same-sex relations between consenting adults is, to say the very least, regressive. Now, I use the term ‘regressive’ in a very specific way: not in terms of the judico-moral discourse of human rights, or anything, but especially as huge setback to:
(a) The consistent work being done by organisations in HIV/AIDS outreach activities, especially among what is called ‘MSM’ (men who have sex with men), such as the petitioners, Naz Foundation; and, (b) The vocal LGBT community, and other allied organisations and social groups, like transgender communities, hijras, and so forth, who suffer from police brutality, irrespective of the question of law, who are equal stakeholders in this struggle.
The Supreme Court verdict also, apart from these specific concerns, seriously undermines the women’s movement, and the question of gender rights and equality, when it states that:
“In its anxiety to protect the so-called rights of LGBT persons…the [Delhi] High Court has extensively relied upon the judgments of other jurisdictions….we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.”
This is, perhaps, one of the most regressive points in the entirety of the 98-page document – “so-called rights”? Would the Supreme Court say that rights of women, Dalits, religious and linguistic minorities are “so-called” rights? This violates the entire legacy of Feminist, Dalit and other politics – and of groups, much like the LGBT community, who have invested their faith in the judiciary; and it is this hope which has been betrayed. My argument, thus, is that the Supreme Court bench fails to situate the Delhi HC’s verdict in the broader context of the gender rights; subsequently, it betrays the spirit of the makers of the Constitution – chiefly, that of B.R. Ambedkar – who sought to include marginalised sections of the population under the protection proffered by the Constitution, and were given respective rights. This becomes more baffling, seeing that the bench observed: “…in last more than 150 years less than 200 persons have been prosecuted…for committing offence under Section 377 IPC…”, there is nothing inherently unconstitutional in the law itself (42; p. 83); and the precedent is on the Legislature to repeal/amend the section (56.; pp.97-98).
I will, however, keep the above problems on the legislature, and the state, in the follow up post. In this essay, I attempt to put the Supreme Court’s logic to the test, especially on the concept which of “against the order of nature”, which is a predominant theme in the court's judgement. The conceptual clarity that I seek to proffer on this condition is embedded in the whole discourse surrounding Section 377, which is, as Washington puts it, “our fear of homosexuals”.
Firstly, the cases the judgement cites, wherein Section 377 IPC has been used to prosecute offences, were indeed brutal cases (pp. 69-70). There’s no doubt about that: women, children, and even other men can be, and are, victims of sexual assaults. But, a closer reading of these verdicts reveals that the offence is not so much against the bodily integrity of the victim, as it is against the “order of nature”.
[Note: the text below contains some amount of graphic details. Reader’s discretion is advised].
For instance, in the Khanu v. Emperor AIR 1925 Sind 286 (p. 69), wherein the accused is said to “be guilty of having committed the sin of Gomorrah coitus per os with a certain little child”, the case reads:
“…Is the act here committed one of carnal intercourse? If so, it is clearly against the order of nature, because the natural object of carnal intercourse is that there should be the possibility of conception of human beings which in the case of coitus per os is impossible.”
Further to it, in the Lohana Vasantlal Devchand v. The State AIR 1968 Guj 252 (p. 70), the accused had sexually assaulted the victim boy, by subjecting him to anal and oral sex:
“The question that arose for consideration therein was as to whether the insertion of the male organ by the second accused into the orifice of the mouth of the boy amounted to an offense under Section 377 IPC.”
This verdict, based on a definition of “reciprocity” – “the enveloping of a visiting member by the visited organism” – which intercourse connotes, therefore was that “the act in question amounted to an offense punishable under Section 377.” The verdict cites other cases – one in which a boy was sexually assaulted and murdered, and the other where oral sex was forced upon a six year old girl – and in all of them, the prerogative was to establish is the offence “was against the order of nature”.
In all cases cited, it is sufficient to say that very grave and violent crimes were committed against children. And, by all means, it is the prerogative of the courts to ensure that the accused are given maximum punishment under the valid laws. But, does that validate the archaic definitions embedded in Section 377 – such as ‘reciprocity’, ‘orifice’, and ‘order of nature’? Clearly, from these cases, it would appear that the courts were more interesting in defining what exactly constitutes offence “against the order of nature” – there is no explicit mention of the crime violating the bodily integrity of the victim in question. Even in its own conclusion, the Supreme Court bench observes that, despite the idea of sexual intercourse meant for procreation being outdated, at the same time (p. 71):
“…it could be said without any hesitation of contradiction that the orifice of mouth is not, according to nature, meant for sexual or carnal intercourse. Viewing from that aspect, it could be said that this act of putting a male-organ in the mouth of a victim for the purposes of satisfying sexual appetite would be an act of carnal intercourse against the order of nature.”
Thus, even sexual stimulation gained by “intercourse between the thighs” is against the order of nature (p. 73). In other words, forced oral or anal sex (viz. sexual assault) is not a grave crime insofar as we would seek to define it in terms of physically harming the bodily and mental integrity or personhood of the victim; it is a crime because even if it is consensual, it is against the order of nature.
The judgement, however, does concede that the cases refer “to non-consensual, coercive situations…and the keenness of the court in bringing about justice cannot be discounted while analysing the manner in which the section has been interpreted.” However, this justification is difficult to fathom when the court holds that (p. 77):
“Section 377 IPC does not criminalize a particular people or identity or orientation. It merely identifies certain acts which, if committed could constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation.”
In an absence of cases where consent can be established, the Court functions merely on the presumption that there is a form of sexual intercourse that is normal, and not against the “order of nature”, and sexual activity that contravenes this normalcy is, by law, illegal and punishable. In other words, as long as people who identify as homosexuals do not engage in sex, they cannot be criminalized – the absence of proof (of consensual same-sex), constitutes, for the judgement, the proof of its absence. The absurdity of “the order of nature” is foundation stone of the patriarchal moral-political economy. One of the processes through which the moral-political economy sustains unequal relations between and within genders, is by its definition of the dominant (hegemonic) form of masculinity. Furthermore, as Michel Foucault argues in The History of Sexuality, this “new persecution of peripheral sexualities entailed an incorporation of perversions and a new specification of individuals…sodomy was a category of forbidden acts; their perpetrator was nothing more than the juridical subject of them” (1978: pp. 42-43, tr. Robert Hurley, New York: Pantheon Books).
There is, however, some truth to the arguments made by the counsel – who represented the Hindu, Christian and Muslim organisations, and the Delhi Child Rights Commission – opposing the Delhi High Court verdict, saying that Section 377 is gender neutral, and “covers voluntary acts of carnal intercourse against the order of nature irrespective of the gender of the persons committing the act” (p. 22). Further:
“…[and that in] carnal intercourse between man and man, man and woman, and woman and woman…[there is] no constitutional right that vests in a person to indulge in an activity which has the propensity to cause harm and any act which has the capacity to cause harm to others cannot be validated.”
Thus, going by the above logic, Section 377 does not criminalize only homosexuals – it criminalizes any individual who has it in them to indulge in desire, and pleasure outside of heteronormative norms – thus, rendering people as a “new specification of individuals”, as Foucault put it. It rests on a fallacious concern for human dignity, safety and morality; but is silent on the fact that a great deal of violence is perpetrated on women when they are raped, in many cases, by their own husbands, in accordance “to the order of nature” – which, ironically, still isn’t a crime in the law books (more on that later). Perhaps, then, it is important for those in the gender rights movement to articulate our unregulated right to fuck – not just the “miniscule population” of gays, lesbians, and transgender people, but even straight, heterosexuals, and – who knows, maybe even “thigh-fetishists”?
The arguments concerning “against the order of nature”, thus, firmly seek to entrench patriarchal structures. Referring back to the notion of the moral-political economy, it is not sufficient for it to merely define the dominant category, or signifier, of the masculine; there is a concerted need to define the intimacy of subjects so as constitute the masculine in a sexualised process. The “order of nature” – and this conclusion, I concede, comes rather late – is this the order of the patriarchal moral-political economy.
In the next post, I shall continue my criticisms of the Supreme Court judgement on Section 377 of the IPC, by situating them in the broad context of gender identities, the gender rights movement, and present a critique of the Parliament . Therein, I will attempt to unravel the contradictions of the Supreme Court’s judgement, by arguing that reinstating Section 377 points out the fallacies of the Indian State’s commitment to preserving the rights of marginal groups – both, women, and the LGBT community, have been at the receiving end of the Indian State’s apathy; and by suggesting that the very same state legislate on Section 377, the Supreme Court’s verdict is a historical blunder, and fails its own legacy. Moreover, the clarity I argued for in the case against “against the order of nature”, is pertinent in the follow up post, where I shall situate my argument, alongside the critiques of the state, and structures of legality, in what could be called a “politics of desire”.