By Smita Mukerji
The buzz around homosexuality has been rekindled with news of the shortly to be released movie ‘Shubh Mangal Zyada Saavdhan’[1] based on a gay relationship.
Consensual homosexual acts were decriminalised with an order of the Supreme Court of India (SCI) in September 2018, after a series of legal battles over decades. We explore the issue of homosexuality and Indian sensibilities with respect to it in a set of articles starting with aspects of the decriminalisation debate.
Around the middle of 2018, hearing was resumed by SCI on whether to repeal or retain the law criminalising homosexual sex[2]. Additional Solicitor General Tushar Mehta responding on behalf of the government had conveyed the centre’s stand that it would not oppose the matter and leave it to the wisdom of the court to determine the validity of Section 377 of Indian Penal Code (IPC) so far as it relates to consensual sexual acts between consenting adults, however cautioned the five judge bench against widening the scope of the court’s decision to issues like gay marriages, adoption and inheritance.
Section 377 of the penal code is an 1861 British legislation that bans homosexual acts as “carnal intercourse against the order of nature”[3] that could attract prosecution leading to jail terms of up to ten years and life-imprisonment. The section has been widely interpreted by police and judges as referring to homosexual sex, though prosecutions under the provision are rare. Numerous curative petitions in the last decades by ‘gays rights’ activists for scrapping of the section have however been built persistently on allegations that it has fostered a taboo against gay sex and led, in some cases, to prejudice, discrimination, police repression and violence against members of the LGBT+ community.
The public discourse over ‘decriminalisation of homosexuality’ has been characterised by widespread misconceptions and rhetorical appeal and has been centred on the contents of the questioned section as an idealistic proposition rather than its realistic implications and juridical application.
While clarification in legal status of the LGBT+ community is very important, the whole case against Section 377 is based on claims by rights groups, of ‘harassment’ and ‘torture’ by law enforcement authorities and those of discrimination in healthcare, citizen’s rights, and at the hands of society in general suffered by the community, much of which is exaggerated, unverifiable and anecdotal. This law has rarely been executed, if at all, in case of consenting adults, although sometimes was in the news when a homosexual rapist was apprehended.
General societal attitude in India with respect to homoerotic behaviour may be marked by conservatism and ignorance, but these are by no means sufficient to prove a case of widespread persecution of the nature alleged in the petitions. There have been instead strong reasons in terms of actual precedents before law for retaining the provision.
The reason that the courts have repeatedly ruled out striking down of this section completely is because it has been invoked almost entirely for prosecuting forced homosexual crimes, in the absence of a provision under IPC which recognises and provides relief to adult male victims of sexual abuse and rape (sodomy). Though in wording the law criminalises all “unnatural” sex, such as anal intercourse even if consensual, almost nobody gets charged for consensual sex as this would require a complainant. In practice, Section 377 is the only law today in I.P.C. against male rape.
In July 02, 2009, the High Court of Delhi ruling on the curative petition filed by Naz Foundation, while it held criminalisation of consensual non-vaginal sexual acts as unconstitutional and violative of fundamental rights to equality before law under Articles 14, 15 and 21 of the Indian Constitution, it did not strike down Section 377 completely holding it to be valid in case of non-consensual non-vaginal intercourse or to intercourse with minors, and it expressed the hope that Parliament would legislatively address the issue.
The reading down of Section 377 by the High Court order was overturned[4] by the Supreme Court of India on December 11, 2013, holding that amending or repealing Section 377 is not a matter for the judiciary and instead deferred it to Indian legislators to provide the sought-after clarity.[5]
The truth of the matter is, that the retention of the provision does not in practice translate into discrimination against homosexuals but points instead to a significant lacuna in terms of inadequate legal provisions to provide safeguards against all nature of sexual violence and justice to victims, and must be addressed by the legislature as pointed out by the judicial authorities.
Until the POSCO Act of 2012 was instituted, sexual abuse of children could not be effectively prosecuted since male victims were not covered under Sections 375, 354 IPC as these did not cover sexual acts of penetration other than peno-vaginal intercourse. These could be prosecuted only under Section 377.
Another glaring example of this inadequacy is the fact that until very recently when the definition of rape was widened under the Criminal Law (Amendment) Act, 2013 (Nirbhaya Act), sodomy on a female victim was not considered as amounting to rape.[6]
Male victims of sexual abuse and rape have practically no protection in the absence of Section 377, and gays rights groups clamouring for its abrogation do not speak about this aspect because it would negate the LGBT rights movement, since it would feed the notion that homosexuals are rapists and/or pederasts. Their pain is no concern of the so-called men’s rights groups whose energies are concentrated on the misuse of dowry and domestic violence laws, and other means of demonising women like expanding the definition of rape to include scenarios of ‘perceived rape’ in order to incriminate females as perpetrators. The real male rape-victims do not serve the purpose of their agenda. And for this reason, feminist groups do not speak about it either because they feel gender-neutral laws could be misused against women.
The Burden of Judeo-Christian Guilt
Much of the moralistic ideas of present-day Indians about homoerotic behaviour were formed in the course of their prolonged interactions with foreign religious ideologies borne by invaders. The conservative views developed as a result of this that seek to deny it, ‘cure’ it with remedies and curb it by trying to pressure individuals with homosexual tendencies to conform to heterosexual associations and institutions, will change only with time. These attitudes can be indignifying for homosexuals as well as emotionally traumatising, for them and people connected to them. However these still cannot be equated with the cruel persecution and extreme punishment faced by homosexuals in Islamic societies. Hindus rather express their discomfort with inane refrains like ‘homosexuality goes against Indian culture’ and look upon it as a mental disease, however not as an evil that deserves censure or punitive action, or worse, violent death.
While some Hindu groups have spoken disapprovingly about homosexuality, the petitioners who have sought to challenge the move to decriminalise homosexuality by repeal of Section 377 and continue to fight it tooth-and-nail are primarily associations of Christian and Islamic religious groups.
On the opposite end of the spectrum are the other kind of ‘Hindus’ who through our predominantly Western model of education have absorbed Judeo-Christian assumptions about repression and persecution and have assumed the consequent guilt without sharing the same socio-religious and historical context, and therefrom spring the emotionally charged reactions and demonstrations opposing the Section which is seen as an instrument of oppression, rather than simply an imperfect and outdated law. The ridiculously exhibitionist demonstrations that have been staged are disproportionate and unnecessary considering the reality of India.
Both these kinds of ‘Hindus’ are completely disconnected from their own cultural past as also ignorant of the holistic view that ancient Indian society took towards all manifestations of human consciousness and consequent behaviour as well as the discretionary framework through which this was enacted, which ought to be the reference point for defining our outlook towards homosexuality rather than reactive, radical and indiscriminate modern Western rights movements.
The advocacy of unrestrained freedoms has had a disruptive effect on the social fabric in the West and it does not serve us to uncritically apply these in our milieu without testing them against the ethical values and normative elements of our society. Unrestrained heterosexual sexual acts too are not without certain consequences for society. The ruling of High Court of Delhi was no doubt an instance of judicial populism which neglected these vital aspects and gave in to a notional appeal of unqualified sexual freedom for adults.
It is quite clear from ancient Indian works on jurisprudence, sexuality and artistic representations that homoeroticism was an ‘acknowledged’ form of sexual behaviour. Homosexuals were recognised under the description tritīya prakrti or ‘those of third nature’ and were not treated as sinning against nature or diseased or perverted. But to regard these as sign of permissiveness would be erroneous. There are depictions on the exteriors of ancient Indian temples depicting all kinds of sexual acts including even bestiality. But these do not indicate approval for every kind of sexual activity, but an affirmation that ‘it all happens’! What it actually represents is, that all kinds of actions of human beings prompted by all levels and kinds (non-/gendered) of awareness occur, but at the centre of every being, the ultimate motivator in all actions performed in the world is the Divine Energy that permeates entire Creation, represented in the Deity established at the core or sanctum of a temple.
Ancient Indian culture was not a negationist–repressive culture. But it also does not mean that they were not guided by considerations of overall societal good in defining clear boundaries of un-/acceptable conduct. The various references in ancient treatises in jurisprudence and sexuality clearly define the variations in homoerotic behaviour, the modes of outlet and the limits on those. They specify rights and restrictions as well as protections under law and safeguards for their livelihood that a ruler was duty-bound to provide. They also had laws in place to protect them—among other identified weaker/vulnerable groups—from persecution, ridicule, defamation, assault, forced confinement and abuse.[7] Just as violation of females of a defeated kingdom was banned, male captives of war could not be forcibly castrated.
Ancient Indians actually had pretty descriptive laws -far more efficient than existing Indian laws—that protected both men and women, in the marital institution as well as in non-affinal liaisons—from rape as well as unwanted non-vaginal penetration and other kinds of violations. Homosexuals, transsexuals, transgenders were classified as distinct guild of sex workers and performers of arts, had a place in society and were not treated as outsiders. Prostitution in all its myriad forms was recognised as a formal trade along with the levels and kinds of educational accomplishments[8] (including arithmetic, science and statecraft) and proficiency in various arts that it entailed, and together with the trainers and teachers were organised into an association, taxed and protected by the State. They were also entitled to social help in infirmity of age, destitution and distress. They were not shunned and enjoyed a certain respect and say in social matters.[9]
However, this does not mean that Ancient India advocated libertine standards. While fulfilment of physical desire (kāma) was treated as one of the valid aspirations of life, it did not take precedence over the others dharma (righteous action), artha (creating wealth) and mōkśa (sublimation to the highest Truth). Sexuality was not inhibited nor shamed, but neither was it glorified beyond its relevance in the scheme of life. Homosexuality was considered natural to those born with the tendency but it was just regarded as a sexual proclivity and did not bear upon any of the institutions or normal course of society. In fact, since for fulfilment of all puruśārthas one needed a progeny, homosexuals unable to beget children were regarded as handicapped.
In April 2014, the Supreme Court formally recognised transgenders as the ‘third sex’ and urged the Government to treat them as a socially and economically backward community and to look to prospects of their education, employment, empowerment through social welfare schemes and providing healthcare and public facilities to them. This actually comes quite close to the ancient Indian ideal of acceptance and inclusiveness.
In the epoch of Islamic invasions there was a drastic change in the free status and reputation of courtesans and homosexuals since Islam forbids homosexuality and frowns upon the performing arts. But since many of the Turkish invaders were bisexuals it was tacitly tolerated by the clergy. As eunuchs they were however transformed into a bonded, exploited class. Their numbers swelled since as per Islamic war conventions the men of the defeated territories were all slayed and their womenfolk made captive. Each campaign brought thousands of maidens and nubile youths who were distributed as booty among the victorious generals. The latter were castrated in order to minimise revolt and to end their prospects of lineage and the challenge to their own, engendering an artificially created class of slaves who however continued to find employment as guards of the royal harems, the nobles’ pleasure partners and also in the military (e.g. the well-known military general of the Delhi Sultanate, Malik Kafur) and were a regular feature of the royal household and administration.
It was the Christian puritanical values imposed by British legislators that made their status illicit and sent them into the closets. For some time after the patronage of traditional Indian ruling class (esp. Islamic) ended, they (esp. the transsexual eunuchs) were sustained on the charity of communities.
The first petition challenging the constitutionality of Section 377 was put in 1994 by the AIDS Bhedbhav Virodhi Andolan (ABVA) at the Delhi High Court, in order to challenge prison authorities’ ban on distribution of condoms.
It was in 2001 that the Naz Foundation, an NGO which works on HIV/AIDS and sexual health issues, brought in the first PIL challenging the constitutionality of Section 377 before the Delhi High Court. It was dismissed by the court. This was followed by a Supreme Court direction to Delhi High Court to hear the petition, followed by the landmark 2009 decision, which however was soon overturned by the Supreme Court.
But in the meantime, public protests against the questioned Section became more clamorous, almost like a fashion statement to be counted amongst the trendy, celebrities making an appearance to register their support accompanied by all the fanfare, as colourful as they are meaningless, since they take into consideration none of the historical background nor present cultural context, nor the actual scope and prior use of the law in India, but unthinkingly ape the LGBT rights movements in the West positing their aggressive demands which threaten to undermine our long-established social institutions.
We will take a closer look at these in the next section.
[1] A 2020 Indian Hindi-language romantic comedy film written and directed by Hitesh Kewalya and produced by Aanand L. Rai, Himanshu Sharma, Bhushan Kumar and Krishan Kumar under the banners Colour Yellow Productions and T-Series, which tells the story of a gay man and his partner, who have trouble convincing the former’s parents of their relationship.
[2] Based on SC decision of February 2, 2016, to reconsider its judgment, stating it would refer petitions to abolish Section 377 to a five-member constitutional bench, which would conduct a comprehensive hearing of the issue.
[3] “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[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.”
[4] “While reading down Section 377, the High Court overlooked that a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders, and in the more than 150 years past, less than 200 persons have been prosecuted for committing offence under Section 377, and this cannot be made a sound basis for declaring that Section ultra vires Articles 14, 15 and 21.”
[5] “We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Aricles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile, nonvaginal sex involving minors… Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality.”
[6] Ref: Aruna Shanbaug case: “Sohanlal [perpetrator] was caught and convicted for assault and robbery, and he served two concurrent seven-year sentences. He was not [emphasis added] convicted of rape, sexual molestation, or unnatural sexual offense, the last of which could have required him to serve a seven-year sentence by itself.”
[7] Arthaśāstra
[8] Ancient texts specify even the educational qualifications, talents and attainments of the man to be able to ‘enjoy’ a ganikā! A courtesan’s dharma, how to maximise her advantage to attain her aspirations are elaborately described in Kautilya’s Arthaśāstra. One reference in the Kāmasūtra is remarkable which shows the chivalry and manly bearing of the age: In an assemblage of kings, ganikās participated in the discussions and while partaking meals, the ganikās were to be served food and drinks first and only afterwards could the men eat and drink. Seeking pleasure was treated as a natural thing but notwithstanding the arrangement of trade with courtesans, men were expected to show courtesy! Courtesans had complete freedom to determine their lives except the king’s order, obedience to which was obligatory (which was however binding on all classes of men).
[9] They were known to contribute towards society and public works, give alms, feed the poor during famines, give away property for charity, constructed wells, bridges, gardens and other public utilities, monasteries and serve passing holy men and mendicants with food.