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India: Why no neta will talk straight on 377

by Antara Dev Sen, 10 July 2009

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The Asian Age, 9 July 2009

We can’t talk about sex. Mere mention of the word diverts the blood flow from the brain to other, more excitable areas of the body politic. And we jabber on in demented frenzy, especially if we happen to be in government.

Ask our ministers, leaders and decision-makers about cross-border terrorism, nukes or China’s malicious moves and you will get big, bold responses. Ask them about the fiscal deficit, Maoist terror, pandemics, environmental catastrophes, our terrifying development indices, and they will answer fearlessly. But ask them about homosexuality and they will gurgle incoherently, demanding ministerial meetings, special committees, national debates, and fall facedown at the feet of religious leaders seeking secular salvation.

Which is precisely what they have been doing about Section 377 of the Indian Penal Code (IPC), which criminalised "carnal intercourse against the order of nature" till last week, when the Delhi high court ruled otherwise. In a historic judgment Chief Justice A.P. Shah and Justice S. Muralidhar ruled that criminalising consensual sex between homosexual adults violates their fundamental rights. This decriminalising of homosexuality was long awaited, most countries (including China and Nepal, in the immediate neighbourhood) have done so years ago.

One would have thought that the United Progressive Alliance (UPA) government would be happy to build on this progressive line of thought and amend the law, as it had earlier suggested. Instead, it hopped from foot to foot, refusing to come out with a straight response. The Congress said it had no view on the matter. The ministers of health, law and home — who had earlier variously asked for, opposed, then suggested and denied suggesting an amendment to the law — huddled together, failed to find a cogent line and consigned the matter to a group of ministers. They sought refuge in parliamentary debate, religious consultation and political consensus. The National Commission for Women (NCW), which has been superbly shaming itself of late, went back on its demand of a repeal of Section 377 and asked for a nationwide debate as "the entire society was involved".

But why is "the entire society involved" in a decision that apparently affects a minuscule minority, as the traditionalists would have us believe? And even if it was, how many laws on matters of public importance have been amended after a thorough public debate? I don’t recall anyone asking us about national security issues, do you? And did anyone ask you about this ambitious Unique Identity Card project? What kind of "all party consensus" did the Indo-US nuclear deal enjoy? And why on earth would we need to muddy waters further by bringing religious leaders into a secular debate?

Sure, the holy keepers of the faith have dutifully objected to decriminalising homosexuality. Muslim leaders said the Sharia prohibits homosexuality — but we are a "secular democratic republic" and not ruled by the Sharia. If we were, we would have to ban pork, alcohol, magic, pet dogs and our stock markets. The Catholics oppose gay marriage and sex outside of marriage. Well, no one is asking for gay marriage right now and no law can prevent sex outside of marriage in a free society where people are marrying late. Besides, if Catholic rules shaped our laws, we would have to first ban more mainstream personal matters like divorce, contraception and abortion before moving to the private life of sexual minorities. And of course certain Hindu fundamentalists have been clamouring against homosexuality. Thankfully, our reformist laws have never given in to majoritarian Hindu sentiment. If they had, we would never have been able to legislate against sati, child marriage, female infanticide, female foeticide, untouchability, child labour, dowry and honour crimes. And widow remarriage, inter-caste and inter-religious marriage would not be legal. In short, we would still be trapped in the narrow, anti-life laws that smother human rights, justice and democratic freedoms in the name of convention.

So why exactly does the state need to control the sex life of private individuals? It usually does not inflict religious demands on us, certainly not in the bedrooms of consenting adults. Sexual preference, like religion, is a personal matter. And this 150-year-old British law doesn’t just target gays, it demands that anyone — gay or straight — be jailed for non-procreative sex or foreplay. Why is the state so keen to barge into bedrooms and supervise sexual mores?

Because it believes that allowing homosexuals to love their partners would destroy Indian family life? If so, we are forgetting that the diversity of India is also reflected in its diversity of family types. Bigamy may have been banned, but significant numbers of our population have more than one partner, whether they married legally or under common law, or whether they plain forgot to get divorced. Many of our leaders also fall into this category. Besides, there is legally accepted bigamy and polygamy among Muslims. There is also polyandry among certain tribes and clans. And many of us make our own mix and match family out of friends, relatives, pet cats and dogs. Gays cannot destroy the Indian concept of the family by setting up their own same-sex families, because there is no one ideal family pattern that applies to all Indians.

Besides, how dare the government, the NCW and others suggest that the private life of consenting homosexuals is the business of the entire nation? For the rest, it can only be anybody else’s business when one party complains. Even high-profile bigamous families live happily ever after because no one complains. The law can enter the bedroom only when one partner lodges a complaint. And in the case of adultery, the law doesn’t even recognise the possibility of the wife being adulterous. However flagrant her illicit affair, she is looked upon as the victim, and the husband can only sue her lover. This is another absurd law stuck in time and conventional patriarchal values. The wife cannot be sued because she is not accepted as a free individual but as the property of her husband, and her master must drag to court the man who attempts to steal it. But even this law doesn’t suggest that the sex lives of these adults is the nation’s business. The nation only thrusts its rubber neck in when it’s sex between gay partners.

Back in March 2000 the Law Commission had suggested that Section 377 be repealed, and the Delhi high court order last week referred to that report. Repeal it or amend it, but you can’t ignore it. Because Section 377 is not about sex, but about basic democratic freedoms. And a democracy must protect these freedoms even if that means hurting religious sentiments and making unpopular choices.

Antara Dev Sen is editor of The Little Magazine. She can be contacted at: sen at littlemag.com