Sex and the courtroom

Saturday, 21 December 2013 - 8:47am IST | Agency: DNA
The hilarity in the Supreme Court arguments over Section 377 was unbelievable.

A politician is exposed using State surveillance to allegedly woo his love interest. An editor tells a reporter his daughter’s age that the easiest way for her to keep her job would be to have sex with him. A godman and his son are both arrested for sexual assault and rape. A riot in Muzaffarnagar over false rumours of inter-religious ‘eve teasing’ left 48 dead and 15,000 homeless. The debate on rape, consent, gender relations sparked by December 16, 2012 continued throughout 2013. And by the end of it the Indian Supreme Court decided that the Indian Constitution’s letter and spirit were not being violated by criminalising consenting adults for having sex, in case the sex happened to be anything other than peno-vaginal.

India 2013 is like a pubescent 13 year old realising there’s something about the body that the mind needs to grapple with. There’s something about power, pleasure, social mores, class, law and so on, that comes together in the body and negotiates its way through bodily desire. There’s a sexual churning out there, and it’s not as titillating as the annual sex surveys news magazines do, nor is it as literary and profound as the language an incarcerated editor wields.

The churning out there is saddening and hilarious at the same time, but above all it is banal. If you want to see what I mean, read through notes of the Supreme Court’s hearing in the 377 case prepared by the Alternative Law Forum, Bangalore. Available online, these notes give more than a moment of reflection about India’s problem with sex. “We never used to discuss this,” Justice SJ Mukhopadhyay said at one point in the 377 hearings, referring to sex. “Now we are openly discussing it in court.”

The court was bound to discuss sex in detail because the law it ended up restoring is rather too specific despite being vague. Despite using vague terms like “against the order of nature”, Section 377 basically outlaws non-missionary sex, for the purpose of saving the world from anal sex. One petitioner, Purushothaman Mulloli, whose NGO JACK India believes AIDS does not exist, even complained that the Delhi High Court’s decriminalisation of gay sex was making too many people talk about the existence of gay sex. Even my friend’s grandson is asking me, he complained. What do I tell him? One of the judges replied it was great that children these days were aware of the Indian Penal Code!

Sometimes the courtroom felt less prudish and more giggly like a bunch of schoolchildren. Talking about non-missionary sex, one lawyer said, “We have material from the Kama Sutra but you may not want us to submit that.” This was met with laughter in the court. Justice Singhvi replied, “We don’t mind it.” This was met with more laughter. Justice Mukhopadhaya explained: “When pathologists go for tests, they don’t mind what they are testing.”

Like pathologists testing a body, the courtroom discussed “carnal intercourse against the order of nature”. What was carnal intercourse? Why does the law use the word carnal and not sexual?
What is against the order of nature? What is nature? Is there a legal definition of these terms, and not just a dictionary definition? Fali Nariman, representing a group of parents of LGBT persons, explained that Macaulay deliberately chose vague language in this section. Nariman quoted Macaulay as saying that he was “unwilling to insert, either in the text or in the notes, anything which could give rise to public discussion on this revolting subject.” Any benefits that might arise from a more precise wording, Macaulay said, would be far outweighed by “the injury which would be done to the morals of the community by such discussion.”

Getting rid of the England of Queen Victoria from our minds and groins is not going to be easy, but despite a bad judgment, that the Supreme Court of India is discussing it, and making politicians take a stand on it, is a start.

Justice Singhvi remarked in one hearing that homosexuality may or may not be abnormal. “We can’t say, only persons with experience could say so,” he said. This remark resulted in laughter in the court. As the Supreme Court gets a chance to correct its bad judgment, one hopes it will realises that a lot of Indians do have experience of homosexuality from before and after 1860 and that they don’t find it abnormal.

The invisibility of the LGBT community has been used against it in keeping it criminalised. In one hearing, Justice Singhvi asked a government lawyer, “Do you know any person who is homosexual?” The lawyer replied, “I must confess my ignorance about modern society.” On another occasion, after reading a note by a gay man’s mother, Justice Singhvi remarked that he had “never met a gay person,” and said that he had learned a lot during these hearings.

In one hearing, the bench remarked: “The number of homosexuals in America are... one third of the population is gay. And the number is rising. Fortunately the number as per NACO is only 22 lakhs in India.” The word ‘fortunately’ there betrayed homophobia.

When given a list of well known LGBT persons, Justice Singhvi said, “But for this list we would not have known that Vikram Seth was homosexual. I enjoy his work but did not realise he was of different orientation. Ismail Merchant, nobody would know about.” But he wondered why there were no people from the legal fraternity, at which lawyer Anand Grover pointed out names of Justice Kirby and Justice Cameron.

This sense of shock and scandal over the existence of homosexuality was overcome by India with the Delhi High Court judgment. In response to that judgment, there was very little anger. How many anti-LGBT protests do you remember? The Supreme Court judgment has only helped bring about a greater public acceptance that criminalisation of consensual sex is wrong. Ironically, it helps India grow up in its sexual attitudes.

The author is a Delhi-based journalist


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