‘Why Section 377 concerns us all, and not just LGBTQ’

Is it time to throw Section 377 of the Indian Penal Code into the dustbin? Most certainly. Perhaps the highest court in the land also thinks so. And about time that it did. On January 8, 2018, a three-member bench consisting of Chief Justice Dipak Misra, Justice AM Khanwilkar, and Justice DY Chandrachud recommended a review of its own 2013 judgement in the Suresh Kumar Koushal vs Naz Foundation case. In that instance, the apex court had upheld the constitutional validity of 377, referring it to the legislature to pass a new law to scrap it, rather than putting the onus on the courts to declare it unconstitutional.

The latest nudge that might have influenced the Court is its judgement on privacy delivered on August 24, 2017, by a nine-member bench headed by the former Chief Justice Jagdish Singh Khehar. In its 547-page judgment, the Court had affirmed that privacy is a fundamental right, thus overturning its own 1958 and 1961 verdicts. But more germane to Section 377, it had ruled that the right to privacy also covered sexual orientation. Once we accept that privacy is a fundamental right and that it also includes sexual orientation, any section of the penal code that militates against either would automatically be regarded as unconstitutional. Hence the recommended review.

But, in my view, though welcome, this is a compromised formula, if not a flawed position. To be LGBTQ is not just a matter of privacy, of what sexual acts people perform in the privacy of their bedrooms. It is actually a way of life, an orientation that is part of a person’s public persona too. Hence the pride parades the world over or even the proverbial coming out of the closet, are so essential in owning up one’s sexual identity in public. As a nation and society we must ask clearly whether being gay is acceptable and to answer equally clearly in the affirmative. This is the least we owe to all those whose dignity is at stake only because of their sexual preferences or gender status. There is almost nothing in our tradition or way of life which justifies the continued criminalisation of the LGBTQ community.

To return to section 377 of IPC, let us, once again, examine what it actually contains. 377 or the “Unnatural offences” law, is a colonial decree, going back to 1861: “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.” Except for sexual relations with non-human animals, who have rights too, this law is strange and absurd for several reasons. But the fundamental defect in it arises from the simple fact that there is no way of determining or proving what is “against the order of nature.” Nature herself does not tell us. Indeed, no form of consensual sexual activity between adults may be considered unnatural.

The explanation offered in the IPC is of hardly any help in this matter:

“Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.” Not only is this so penile, if not puerile, once again showing us how androcentric and phallic our notion of sex is, but it also betrays a severe lack of imagination or acknowledgement of human sexual conduct. Apart from sexual intercourse involving a penis entering a vagina, all other forms of penetrative sex even between heterosexuals would, at present, be rendered illegal in India. This alone makes 377 so absurd: it turns millions upon millions of perfectly “normal” Indians into criminals, liable to a sentence extending to life imprisonment. Do we need some complicated privacy argument to scrap this stupid law?

As if this is not bad enough, the law adds insult to injury by adding the word “voluntary” to the section. Of course, the idea is not to punish those who may be raped or forced into “unnatural” carnal intercourse. But, contrarily, to penalize those who engage in voluntary sexual activities in addition to or other than a “carnal intercourse” involving a penis and vagina is utterly unreasonable if not perverse in itself. Since the organ of penetration is not specified, does the law cover French kissing too — or the voluntary but “carnal” insertion of a finger in another person’s ear, nostril, or mouth?

I am not at all surprised that there have been few arrests and fewer convictions under this act. But that does not mean that it should continue in our statute books. Repeal it immediately. Let some sense prevail on this pernicious, harmful piece, and outdated piece of legislation.

The author is a poet and professor at JNU. Views expressed are personal.