How we should not have reported on Section 377 being partially struck down
From 10.30am to 11.40am, a lot of people across India sat nervously refreshing Twitter and news websites; some, from much before that. This feverish wait was paid off with one simple line from a historic verdict delivered by a five-judge constitution bench in the Supreme Court:
“Majoritarian views and popular views cannot dictate constitutional rights. LGBT community possess human rights like all other sections of society. Equality is essence of constitution. [Section] 377 is arbitrary”
A partial strike-down of the Section 377 of the Indian Penal Code (IPC) is cause for celebration, for it is one of the many laws in this country that exist only to oppress the marginalised. A colonial law — and puritanical at that — the wretched Section 377, that criminalised “unnatural” sex, has been used for a long, long time to persecute homosexual folk.
But even when there is celebration, there is a whole lot that needs to be examined carefully, especially for the news media. And there are two big don’ts when it comes to how this happy news is being reported.
One — the headline: “Gay Sex Legalised”.
The use of such a headline fails both, the report and queer folk.
Let’s break this down.
There is nothing called “gay sex”.
According to the law, “unnatural sex” refers to people voluntarily having carnal intercourse against the “order of nature” with any man, woman or animal. And that person shall be punished with imprisonment up to ten years, and shall also be liable to be fined.
Nowhere does the law itself mention either homosexuality or heterosexuality. The law is just about what the Victorian Brits considered outside “the order of nature”. It is true, of course, that the law has almost exclusively been used to hound queer folk. But that still does not mean the Supreme Court decriminalised “gay sex”.
On the other end, when you refer to this momentous day as “gay sex legal”, you trivialise one of India’s biggest civil liberties movement. Yes, it is about the right of queer folk to have sex, to experience intimacy, to express their love physically.
But it is also about so much more.
In his DailyO column, Mukesh Rawat correctly states: “when the debate around Section 377 is reduced just to “gay sex”, the image that is consciously or sub-consciously created is two men having penetrative sex. The image of course is not a problem on face value, what is problematic is that it leaves asides many other aspects. At times, this reductionist image can result in trivialisation of a very sensitive issue concerning human rights.”
One of the aspects left out is the many letters, other than “G”, that make up the LGBTQ+ community. The other more important aspect, however, is that a movement about recognition, equal rights, respect, pride and acceptance is just reduced to sex.
It’s disrespectful.
Two — Another important thing to remember is that today, being a day of victory for hundreds of thousands of marginalised folk, should not be about the homophobes and bigots.
There should be no “bias towards fairness” when reporting on this — because there are no two sides to this.
Section 377 was oppressive and any view that does not agree with that does not hold any value.
But television media (and even digital, to a certain extent) loves to invite controversial religious and political figures to provide a “contrarian” view on panel discussions. It is not at all uncommon to see religious ideologues on TV news, who happily (and angrily) spout opinions (that is wholly wrong) about sexuality and rights. These voices, without fail, always come from positions of immense privilege, power and social capital. And these voices do not deserve a pulpit, least of all, on national television.
Before there is a misguided attempt to call this idea out as a “freedom of expression” issue, it is prudent to be reminded that not inviting a religious hardliner on TV to talk about why homosexuality is bad does not violate the freedom of expression of anyone. Not here on earth. Not anywhere in this universe.
Of course, if one still has a problem wrapping their head around this concept, a relevant xkcd comic exists that more than explains it.
More importantly, however, today should be a day for the marginalised to have a voice; it is after all their day of victory. Queer folk and activists, who have fought for decades, deserve to be heard today and every day.
But today, more than any other day.
Both of these “guidelines” sadly are not being followed.
One can see just from Twitter trends that senior BJP leader Subramanian Swamy is trending, thanks to his “antiquated” views on queerness. One would wonder why anyone would want to ask him such a question. But “It is the American game. Soon there will be gay bars here where homosexuals can go. HIV will spread. So, after looking at the consequences I hope the next government will move a seven judge bench to set aside this five judge bench order” does make catchier headlines, doesn’t it?