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Set India free: SC needs to rid 'British morality' of Section 377

Anju Rao
Anju RaoFeb 02, 2016 | 10:44

Set India free: SC needs to rid 'British morality' of Section 377

The Supreme Court of India is set to hear a curative petition today against its 2013 judgment that upheld the constitutional validity of Section 377 of the Indian Penal Code. In 2009, the Delhi High Court had repealed this draconian law that criminalises unnatural sexual intercourse but was soon overturned by the apex court four years later. Today's hearing is being termed as the last resort for the country's LGBT community as far as judicial options are concerned after which only Parliament can decide to offer any resolution.

Like all things wrong with the Indian state's superstructure, Section 377 too is a fallout of British colonial (mis)appropriation of the sociocultural discourse of its colonies that continued bureaucratically for more than a century without substantial intervention.

IPC Sec 377 or "unnatural offences" was formulated in 1860 by Britain's Lord Macaulay, the president of the then Indian Law Commission. Today, the law is analysed by many liberal studies scholars as the coloniser's effort to impose ideas of public morality from the Victorian era on the subjects of its biggest colony, hence tampering with the inherently pluralist fabric of India. The Section reads as follows:

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.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

Interpreting the legal provision in question, one can draw out a direct correlation between Britain's monochromatic approach of natural sexual activity and India's idea of cultural decadence over decades.

Victorian England of the 19th century called for heavy sexual restraint, extreme reaction to crime and strict social code of conduct. It viewed the word "sodomy" and the like as unmentionable or nameless crimes. Sir William Blackstone, a British jurist of the late 18th century, wrote about why he would not utter homosexual acts in word in his work Commentaries on the Laws of England:

"I will not act so disagreeable a part, to my readers as well as to myself, as to dwell longer upon a subject the very mention of which is a disgrace to the human nature…"

The emerging dominance of the bourgeoisie at the time helped further the process of sexual suppression in the name of behavioural propriety which gradually influenced all socioeconomic classes going into the 20th century. Even so called common scientific pursuits like Darwinism and sexology produced ideas of orthodox human sexuality where what is biologically natural and unnatural came to be cleverly demarcated in favour of patriarchy. Queen Victoria (1837-1901) even fictionalised lesbianism, rendering buggery impossible between women and hence needless was a law to regulate it like the Buggery Act of 1533.

An inevitable consequence of the regime was a robust underground discourse that transpired in parallel as the "secret world" of Victorian prostitution and pornography. A strong homosexual counter culture with pagan approaches to sexuality was embraced by commoners to oppose moral and religious teachings and reject the notion that reproduction was natural and sacrosanct. Full of contradictions in its narrative, the Victorian age saw its leading aristocrats filter the contents of history and project the empire as pure and pious as opposed to non-white colonies that were too plural for good and whose "ignorant" populations needed to be civilised.

This almost hysterical frame of mind towards the term, let alone the act, has trickled down to the educational, legal and political institutions of the British territory of India, and by extension, unfortunately, to postmodern India.

The hegemonies of gender and sexuality are so profoundly ingrained in our ethos today that the courts here went on to include consensual oral sex between man and wife and non-procreative sexual acts such as mutual masturbation and dry humping in the ambit of unnatural sex. Interestingly enough, much like Queen Victoria, the courts have rejected the inclusion of cunnilingus under either categories of natural or unnatural sex since the act in its utmost probability is considered legally incomprehensible and hence unrecognised.

On the other hand, the European Court of Human Rights ruled in favour of the private life of its citizens more than two decades ago when it stated that criminalising homosexual behavior was a violation of the former, forcing Britain into accepting the same.

This means that the original empire that formulated the Indian Penal Code is now going up the path of liberalism and human rights while a colonially hung-over country like India reacts in denial of its own myriad indigenous sensibilities. The Supreme Court's decision to uphold Section 377 as constitutionally valid is reason enough to believe so.

The biggest service that the judiciary can do to a socialist secular welfare state like India is make a case for the criminalisation of "involuntary unnatural sex", if one realistically cannot do away with the term "unnatural" (which is in itself is a binary wrought with connotations of gender inequality). To stay true to the basic doctrines of the Constitution - right to equality, personal liberty and privacy - rather than give teeth to archaic laws that are fit only to remain as redundant propositions worth discarding.

A few top judges and popular parliamentarians raising their voice for sexual equality and empowerment cannot do the job alone in a nation that is torn between one irrational conservative frenzy over another. One must adopt the spirit of enquiry that allows allegiance to nothing but the collective conscience of humankind that comprises love and coexistence far above distorted histories of colonial origins.

Last updated: February 02, 2016 | 16:53
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