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Section 377

Section 377

I WAS attending a large conference in Lima in Peru. The conference had split into groups and those groups were discussing the conference theme in great detail. Suddenly, the stout, middle-aged director of the conference walked into our room and introduced himself and an equally stout man as his “wife”. I was stunned.

Actually, I should not have been surprised, as I had a male editor who had a male companion who always accompanied him to the office. When the editor was transferred to the US, he took the companion along with him. He never introduced him as his “spouse”, as the American did at Lima, for he could have been sentenced to life imprisonment under Section 377 of the IPC, which was partially buried by the Supreme Court on September 6.

My encounter with homosexuality began at a very young age. I had an “uncle” whom I called “bank uncle” because he worked in a bank. A chronic bachelor, he was not a relative but a family friend. Once I happened to stay with him for a night. We shared a bed.

I went to sleep as soon as I hit the bed. I was woken up from my sleep when a “snake” began to pierce my thighs. I hit it with all my strength, jumped out of the bed and ran to the adjoining room and slept with the uncle’s mother.

Decades later, I was traveling in an overcrowded local train in Bombay. Suddenly, I realised the man standing behind me was trying to misbehave. I moved out of the area.

I remembered these men when at long last the Supreme Court pronounced that Section 377 of the Indian Penal Code was violative of the Indian Constitution. In doing so, the five-member Bench unanimously upheld the Delhi High Court judgement of 2009 which first decriminalised homosexuality. At that time, I read with considerable interest the judgement that the author of “A Suitable Boy” and self-confessed gay, Vikram Seth, had described as rich in literary value. He was not wide of the mark, as I found the judgement quite a powerful argument against Section 377.

As I write this column, I received a message from my friend and writer Sanjoy Hazarika, who heads the Commonwealth Human Rights Initiative: “Using the Supreme court's verdict on Sec 377 as a peg, we call for all countries in the Commonwealth (36 of 53 have a ban on same-sex relations) to end colonial laws forced on 'subjects' by Britain in the 19th century, laws which were arbitrary, unjust, unequal and illegal. The Supreme Court has set the bar.”

Before I discuss the Section, let us find out who the homosexuals or lesbians are. Once I had a long discussion with a Christian priest who argued that homosexuals are people who get attracted to the same sex for want of a companion from the opposite sex and continue in that “unnatural” mode.

The priest’s argument corroborated my own finding in the case of eunuchs on whom I did a detailed story while I was in Bhopal in the seventies. Then I learned that most of them were not born eunuchs. In fact, an overwhelming majority of them were born boys but were castrated in childhood and brought up as eunuchs.

But ask any gay, he or she will say that the attraction to the same sex is not a perversion. It is as natural as a heterosexual person’s attraction to the opposite sex. In other words, homosexuality is a natural phenomenon. That is what every one of the five Supreme Court judges also seems to believe, though there is, as yet, no conclusive, incontrovertible basis for the belief. Homosexuality is, therefore, “God-given” or “nature given”, they say.

I went through a homosexual’s interpretation of the Biblical injunctions against homosexuality before doing this article. The “Bank Uncle” who tried to assault me in my childhood belonged, perhaps, to what the priest described as a forced homosexual. A couple of years later, the “uncle” got married, sired children and died of a massive heart attack.

But what about the other man who tried to attack me in a crowded train? He was, perhaps, a confirmed homosexual. I wish I had a heart-to-heart discussion with him to find out about his sexual preferences and write a detailed profile of the man. But when the attack occurred, my only intention was to save my bottom and, my reputation.

Nial Ferguson in ‘Empire: How Britain Made The Modern World’ (Penguin) profiles some homosexuals of both categories. He says, “a distinction must be drawn carefully between men whose upbringing and life in almost exclusively male institutions inclined them towards a culture of homoeroticism and condemned them to have difficulties with girls; and those who were practicing pederasts”.

Cecil Rhodes, who introduced the famous Rhodes Scholarship, Baden-Powell, who founded the Scouts movement, and General Kitchener, the “hero” of the Boer war, belonged to the “compulsive” homosexual group. “Each of these men, so masculine in public, could be extraordinarily effeminate in private”. Like the “wife” we were introduced to at Lima!

To be fair to Ferguson, he does not say that Rhodes who was close to his private secretary and Baden-Powell, who was intensely attached to Kenneth ‘The Boy’, physically “consummated” their relationship. However, he describes in detail the case of Hector MacDonald, who rose all the way through the ranks to become a Major-General with a knighthood. “Though he married and fathered a child, he did so secretly and saw his wife no more than four times after their wedding; when overseas, however, he was notoriously prone to homosexual adventures and was finally caught in flagrante with four boys in a Ceylonese railway compartment”. He was a congenital homosexual.

A recent Malayalam biopic on a well-known Malayalam writer, who candidly wrote about her sexual adventures, depicted her husband, not exactly as a heterosexual.

“As late Victorian Britain grew ever more prudish – and laws against sodomy were ever more stringently enforced – the Empire offered homosexuals like “Fighting Mac” boundless erotic opportunities.

“Kenneth Searight was another; before leaving England at the age of twenty-six, he had known only three sexual partners, but once in India, he found a very wide scope, detailing his numerous sexual exploits there in verse”.

It was to prevent the likes of Kenneth Searight from exploiting the situation to their sexual advantage in India that Section 377 was drafted and incorporated in the Indian Penal Code by Thomas Babington Macaulay. And not exactly as Sanjoy Hazarika seems to believe.

Once, when I wrote an article in the Indian Express, which was critical of the Sangh Parivar, I was called “Macaulay’s child” by a letter writer. Since my mother was born long after the death of Macaulay, whose grandfather was a missionary and whose father was a powerful politician who stood for the abolition of slavery, I did not consider it an insult.

Curiously, Macaulay who introduced English education in the country, instead of Persian and Sanskrit, is often derided by the Hindutvavadis for one statement he made:

“It is impossible for us, with our limited means, to attempt to educate the body of the people. We must at present do our best to form a class who may be interpreters between us and the millions whom we govern; a class of persons, Indian in blood and colour, but English in taste, in opinions, in morals, and in intellect. To that class we may leave it to refine the vernacular dialects of the country, to enrich those dialects with terms of science borrowed from the Western nomenclature, and to render them by degrees fit vehicles for conveying knowledge to the great mass of the population.”

Worse, words are now put in Macaulay’s mouth to show him in ‘a poorer’ light. The BJP’s election manifesto of 2009 contained some manufactured quotations that Macaulay never uttered or wrote. It is, however, a measure of Macaulay’s drafting skill that the IPC and the CrPC remain the least amended codes, while the Constitution was amended more than a 100 times.

Curiously, the RSS is one of the few organisations which felt uncomfortable when Section 377 was trashed by the apex court. The Catholic Church is another but its statement is couched in such a language that it is difficult to make out whether it supports the court decision or opposes it. The RSS does not realise that in doing so the Parivar has been willy-nilly paying a handsome tribute to Macaulay. Now, what does Section 377 say?

It says, “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 a term which may extend to ten years, and shall also be liable to fine.” It further explains: “Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

By the way, the law is still valid if a man or woman has sexual relations with an animal which the Supreme Court has described as bestiality.

Forget for a while homosexuals and lesbians and imagine a married couple in their bedroom indulging in any sexual act “against the order of nature” like, for instance, oral or anal sex. The couple could be arrested and punished with “imprisonment for life”. A modern interpretation of life imprisonment in India is “imprisonment for the whole life”.

In other words, the married couple would have been in jail till they died for the crime of exploring each other’s body. Or, for deviating from the missionary position! Surely, the law was indefensible.

Now, someone may ask whether I could cite any instance of a married couple being arrested under this law. Probably, no such couple had been arrested since the section was incorporated in the law about one and a half century ago. To go back to the law, the IPC, including Section 377, was created when India did not have a proper written law.

During the whole of the Mughal period and earlier, there was no written law to govern the people of India. The ruler’s word was the law. Abraham Eraly in ‘Emperors of the Peacock Throne’ (Penguin) writes: “Akbar would issue firman after firman, and governors would receive them with utmost reverence and obedience – and then go on to do precisely as they pleased. ‘This order quickly disappeared like a reflection on the water,’ says Badauni about one of Akbar’s regulations; ‘it never attained currency, although firmans went forth to this effect,’ he writes of another”.

Judges decided cases on the basis of their intuition and kings and rulers were, in any case, exempt from the law. Thus a king could kill anyone. In other words, might was right. It was against this backdrop that the British introduced the written law under which anyone guilty of a crime, howsoever high a post he might have held, could be punished if he violated the law. Thus came into being the concept of the rule of law in India.

Of course, Section 377 was a convenient ploy in the hands of the police to harass and extort money from those suspected of being homosexuals or those holding hands in a public park. The apex court has quoted the debates in the Constituent Assembly to claim that the high-water mark of the Constitution was “inclusiveness” and this Section was violative of the spirit of the Constitution.

There is some merit in the court’s argument. What two consenting adults do in the privacy of their bedroom is not the business of the state. Besides, the state cannot deprive a person of the right to the use of his own bottom.

There can be endless debates on whether homosexuality is “natural” or God-ordained. Those who use the argument of social mores do not realise that at one point widow-burning, too, had social sanction in the country.

The point is, there are many homosexuals in this country, some of whom have held and are holding important offices in the government and in the private sector. Until now, they were “criminals” in the eye of the law. Therefore, they remained in the closet.

In a television debate, I heard a retired senior bureaucrat lamenting over the “fact” that the court’s verdict would result in rampant homosexual behaviour. He even talked about college hostels and public parks turning into homosexual dens.

But, then, homosexuals have been around for as long as man has been around, as is borne out by literature from the Mahabharata to “A Suitable Boy”. The fear that more and more people will turn homosexual is unwarranted.

The verdict has raised a host of issues. If two gay persons can legally have a sexual union, why can’t they marry with all the attendant benefits that the marriage offers? Will they be able to adopt a child, since they cannot produce one? Will a partner in a gay relationship inherit the property of the other if he or she dies?

These are issues that are bound to crop up, sooner than later. All religions teach that marriage is possible only between man and woman. Burying Section 377 was easy but finding answers to these questions will be difficult unless we as a nation decide to go the whole hog with what is in vogue in Europe and the US. As Lucretius said, “what is food to one man may be fierce poison to others”.

( ajphilip@gmail.com)

(Published on 10th September 2018, Volume XXX, Issue 37)