The recent judgment of the Honorable Supreme Court repealing Article 377 of the Indian Penal Code was a landmark in the struggle for human rights for LGBTIQA people in our country. The removal of this Victorian Era law written into our statute books by the notorious Lord Macaulay was long overdue. It was an unjust and inhuman law that violated the spirit of the fundamental Right to Equality guaranteed in the Indian Constitution. Article 377 stated that whosoever has sexual intercourse ‘against the order of nature’ is liable to imprisonment. Apart from the fact that there is no scientific basis for defining homosexuality as going ‘against the order of nature’, there are many grounds on which this law was unscientific and worthy of being struck out of our codes.
Zoologists and genetic scientists have conducted hundreds of studies on the nature of sexuality over the years. These studies have shown that homosexuality is not a “perversion” as is widely believed, but a genetic condition. Homosexuality has been observed in many species and it has been found that a person has as little choice over his sexuality as over the colour of his skin. In fact, in some species, it seems to be a mechanism nature has evolved for regulating population growth.
Poets and men of the arts and letters have long suspected this truth. Research has shown that many creative geniuses including William Shakespeare, Aphra Behn, Walt Whitman, Emily Dickinson, AD Housman, Oscar Wilde and Ifti Nasim, to name just a few, have been among them. In fact that contribution of people with a homosexual and bisexual orientation to the betterment of humankind has been so tremendous that there are grounds to research the links between sexual orientation and creativity in general.
Rather than the laws of Nature or God, it is the religions codes of human beings that have taken an intolerant stand towards homosexuality. The Semitic religions –Judaism, Christianity and Islam –describe it as a sin. However, it must be understood that in all religions and scriptures there are some rules that hold good for all times and places and others that are specific to the historic conditions in which they came into existence. The religions mentioned above evolved their strictures against homosexuality at a time when the populations of people practicing them were small and scattered and often hunted and persecuted. It was important to expand and deepen traditional-model families and this could be achieved only by having many children. In fact, it is for this reason that Judaism permits plural marriage and Islam too –in the aftermath of the devastating battle of Uhud, that created hundreds of widows and orphans –sanctions 4 wives to a man. Yet, the majority of Jews and Muslims in today’s world practice monogamy. This reflects their implicit understanding of the historically specific nature of religious rules and the need to change with the times.
In the light of the findings of modern science, the development of modern ideas of human rights and of course, the absence of the need to multiply human numbers in our overpopulated world, we must understand that the laws against homosexuality too, are not necessary in our century.
In Hinduism –as pointed out by none less than Sri Sri Ravi Shankar –none of the smritis and shastras stands for punishing homosexual intercourse, although the Manusmriti looks upon it with contempt. But it must be remembered that Manu lavished the same contempt on women and the so-called “lower” castes, attitudes that are clearly recognized as wrong today. Buddhism, Jainism and other religions are silent on the issue.
Indian culture has always recognized and celebrated a variety in sexual preferences, as can be seen in the wall sculptures of great temples like those at Khajuraho, Konark and Madurai. The legend of Ayyappa’s birth also points to a broad mindset that views gender as a performative continuum rather than a watertight once-and-for-all category. Recent works in this field such as Hoshang Merchant’s Yaraana: Anthology of Gay Writing, Ashwini Sukhthankar’s Facing the Mirror collection and Same-Sex Love in India of Ruth Vanita and Saleem Kidwai attest to the tolerance of the Indian spirit. It is a spirit that bows before the mysteries of human sexuality and celebrates them, rather than passing harsh judgement on them. This also shows us that those who defended Article 377on the grounds of Indian culture have seen or known little of this culture or its rich history.
LEGAL AND HUMANITARIAN
Article 377 was a brainchild of the British colonial administration. It was passed nearly 150 years ago at a time when the priority of the police and the state was to keep the local population in the bondage of fear. It is not the product of an elected or democratic order. Since Independence, we have had, or at least aspired to have a welfare state that takes into account the needs and sentiments of people. It is a democratic order that should aim at protecting minorities –including sexual minorities –rather than brutally forcing conformity on them. In this situation, maintaining 377 was absurd. Recognizing this, the Honorable High Court of Delhi recommended the reading down of this law and the decriminalization of sex between two consenting adults of the same gender. However, the Supreme Court of India reversed this decision in 2013 more on technical grounds than logical grounds, recommending that the State pass fresh and clear laws to safeguard the interests of sexual minorities.
Another reason for repealing this draconian law is the fact that in the century and a half of its existence very few cases were actually filed under this law. Instead it was used by the police to terrorize, bully and extort money from young males, especially slightly feminine ones, through blackmail and force. In an already corrupt country with a corrupt police force, this law created a lot of problems for many people including young, unmarried heterosexuals. This law also drove underground same-sex lovers away from state sources of counseling and help with regard to matters of safe and hygienic sex, contraception and AIDS protection.
It was also more than a little surprising that the policing of homosexuals and bisexuals should be such a high priority in a society that has one of the worst heterosexual crime rates in the world!
Fortunately, 5 years after reinstating 377, the Supreme Court was able to give petitioners against it a patient hearing with an open mind and repeal it. Indeed, the Honorable Court went so far as to state that the rights of LGBTIQA persons were not “so called rights” but were well grounded in our Constitution. The proverbial icing on the cake of the verdict was the observation by one judge that history owes an apology to members of the Queer community.
Now that 377 is no longer in the books what is the road ahead for members of our community? The answer to that question is that we need to continue to engage in sustained efforts to change people’s minds and eliminate homophobia from society. Although we are no longer criminals we are still a long way from getting social acceptance. Most Queer people in India still live in the metaphorical closet because we have a social ecosystem that is hostile to us. We need to change this ecosystem so that community members can come out and be what they are openly. We need to have an economy where there is no discrimination against Queer people either in recruitment or in other conditions at the workplace. We need a society in which gays and lesbians don’t have to conceal what they are in order to do simple things like taking a house on rent. We need to make interventions in the educational sector, particularly at school level, to sensitize children and teach them to accept and celebrate differences in sexuality. In carrying out our work we must not lose sight of the struggles being waged by other marginalized sections of society and the need to ally with them. Even in the LGBTIQA community, the plight of lesbians is more serious than that of others. The end of 377 is rightly being celebrated but let us not lose sight of the fact that it is still a “long walk to freedom.”