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India: Section 377: How natural is normal?
by Nivedita Menon

[SACW | January 1, 2004]

The recent episode of a lesbian couple in Kerala having to seek court intervention to stop police persecution initiated by their parents, starkly underlines the fearsome question that lies unrecognized at the heart of the furore around Section 377 of the Indian Penal Code: Is it natural to be normal? Introduced into Indian statute by the British parliament in 1872, this section penalizes sexual activity "against the order of nature". So? A handful of perverts should worry. At most, the wider body of ubiquitous "human rights activists" who hold the absurd belief that as long as consenting adults are involved, sexual preferences are private matters from which the law should keep out. Should anyone else care?

Well, here's bad news for normal society --"normal" sexuality is no private matter. The assumption is that "normal" sexual behaviour springs from nature, and that it has nothing to do with culture or history. But if we recognize that sexuality is located in culture, we have to deal with the uncomfortable idea that sexuality is a human construct, and not something that happens "naturally." Consider the possibility that rules of sexual conduct are as arbitrary as traffic rules, created by human societies to maintain a certain sort of order, and which could differ from place to place -- for example, you drive on the left in India and on the right in the USA. Further, let us say you question the sort of social order that traffic rules keep in place. Say you believe that traffic rules in Delhi are the product of a model of urban planning that privileges the rich and penalizes the poor, that this order encourages petrol-consuming private vehicles and discourages forms of transport that are energy-saving -- cycles, public transport, pedestrians. You would then question that model of the city that forces large numbers of inhabitants to travel long distances every day simply to get to school and work. You could debate the merits of traffic rules and urban planning on the grounds of convenience, equity and sustainability of natural resources -- at least, nobody could seriously argue that any set of traffic rules is natural.

Let us apply this argument to sexuality. First of all, if "normal" behaviour were so natural, it would not require such a vast network of controls to keep in place. Take some random examples. Item one - gendered dress codes. Imagine a bearded man in a skirt in a public place: why would this shake the very foundations of "normal" society? Unless "he" is recognizably a hijra, and that puts him on the margins of normal society in a different way. Just the wrong kind of cloth on the wrong body, and the very foundations of natural, normal sexual identity start to quake! Two - the disciplining of thought through schools, families, the media, education, religion. All telling you that desire for someone of the same sex is a sin, or insane, or criminal. Three, if all else fails - violent coercive measures to keep people heterosexual, from electric shock therapy to physical abuse to using the coercive apparatus of the state, as the parents in the Kerala incident did. Four laws. Why would we need laws to maintain something that is natural? Are there laws forcing people to eat or sleep? But there is a law forcing people to have sex in a particular way!

The point of real interest though, is that human beings do not in fact, live particularly "natural" lives. The whole purpose of civilization seems to be to move as far away from nature as possible. We clothe our naked bodies (indeed, the same people who condemn homosexuality as unnatural would insist that natural nudity be covered up). We cook raw food derived from nature, we build elaborate shelters from the natural elements. We use contraception (again, most of those who condemn homosexuality on the grounds that sex is only for procreation would not question the need for contraception). Clearly, equating "unnatural" with "immoral/wrong" is simply a way of suffocating debate.

But the more important question is - what is the social order that the rules of "normal" sexual behaviour keep in place? Why is it so crucial to ensure that men have legitimate sex only with women? (Note the word legitimate, because of course sex between people of the same sex is as old as human civilization). Why the need to ensure that women only have sex with the men they are married to (because again, everyone knows that the rules of chastity and monogamy are enforced strictly only for women). Remember the scene from the Hindi film Mrityudand in which the visibly pregnant Shabana is asked "yeh kiska bachha hai?" It is very evident that the baby is inside her body, that it is hers, but the absurd question makes absolute sense in a patriarchal society -- who is the father of this child, is what the question means. Whose caste does this child bear, to whose property can he lay claim?

This brings us to the institution of the family that is at the core of the present extremely inequitable social order. A Delhi High Court judgement in 1984 ruled that the fundamental rights to equality and freedom have no place in the family. To bring constitutional law into the home, the learned judge ruled, is like "taking a bull into a china shop." And of course, he was absolutely right. The family in India is indeed premised on extreme inequality -- beginning with the wife changing her surname on marriage, to the property to which no sister has equal rights with her brother, to the sexual division of labour, which legitimizes the unpaid domestic labour of women. The rights to equality and freedom would certainly destroy the family as we know it.

If families were only about material and emotional support structures, then any such group of people would be recognized as a family. Isn't it also more likely that humans experience sexual desire in a variety of ways, of which the heterosexual is only one? But the point precisely is that only the heterosexual, patriarchal family is permitted to exist. And this family is about the passing on of property and lineage through men. The "normality" that this requires is produced, maintained and rigorously policed by the state, laws and social institutions. It is far from being natural or private.

In short, section 377 does not refer to some queer people out there, whom normal people can gaze upon like anthropologists at a bizarre tribe. Section 377 is about the painful creation of Mr and Mrs Normal -- it is one of the nails holding in place the elaborate fiction that "normality" springs from nature.