Section377:'the Love That Dare Not Speak Its Name'

Section 377:'The Love that dare not speak its name'

A law was passed in 1861 by a British government seeped in Victorian morality stated: "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment which may extend to ten years, and shall also be liable to fine." And this is the famous Section 377 of the Indian Penal Code. It criminalizes what it calls, “sexual offences against the order of nature”, which leads us to the question - what is “natural” or “normal”? The assumption is that “normal” sexual behaviour springs from nature, and that it has nothing to do with culture or history. But if we recognize that heterosexuality as the essence of Indian culture and homosexuality being the western import, we have to deal with the uncomfortable idea that sexuality is a human construct and not something that happens “naturally.” In India, a homosexual gets used to being judged and condemned through three morality-tinted glasses: religion, law and medicine. Religion demands, law pronounces and medicine reinforces guilt. A simple examination of behavioural therapy to cure homosexuality shows that it revolves around one fundamentally uncontested assumption: the normality of heterosexual desire. Heterosexual desire is seen as being the object of all sexual development. Every child is expected to grow up to become heterosexual. Any deviation from this norm meets with severe disapproval, punishment or therapy. Every system in the society struggles to enforce this norm. The religious origins of these assumptions are fairly obvious, as is the enshrinement of these religious beliefs within law. But for medicine or science to claim to have scientific proof for the possibility of treatment and cure of homosexuality is simply hypocrisy. To study homosexual desire with heterosexuality as the frame-of-reference and then find homosexuality abnormal is not a scientific conclusion, it is wanton disregard of the truth about homosexual lives. This belief is simply heterosexism in practice. So if social values oppress the homosexual, why should the homosexual be the one to change and adapt to society? ♦♦♦

The word homosexuality may have entered daily vocabulary in India, but it is still used in hushhush terms. Queer people have long been objects of description, caricature and violence in public domains: in film, in media, on the streets, in the everyday life. QueerFest, a film festival on films dealing with homosexuality in India, had none of the self-assurance of gay pride movements as in Europe and the US. Promotional material for the festival made it clear photographers and broadcasters would not be permitted to attend, to protect the identities of those present there. Ashok Row-Kavi, who launched India's first journal specifically for gays - Bombay Dost, talks about his sexual orientation but never goes on record to say that he has had sex with a man, for fear of persecution. However Mahesh Dattani, the first Indian playwright in English to win the Sahitya Akademi award, brings about a refreshing change when he takes on different social stigmas in his works, ranging from hindu-muslim antagonism to marital relationships to alternative sexualities. In “Bravely fought the Queen” , Dattani not only deals with the discord

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within a married life but also depicts how the male characters are also pushed into marriage so that they may conform to the patriarchal nature of the society and heterosexual norms. Popular culture, especially mainstream Hindi movies, deals with gay characters with ridicule. Razdan’s movie “Girlfriend” faced ire from queer rights’ movement activists for the portrayal of a lesbian as ‘a psychopath, sexually abused, man hating, murderer and killer’ fits just fine into their hetero-patriarchal agenda of portraying lesbians and gays as freaks, abnormal and as people who must die at the end of the film, so they are aptly punished for their unnatural existence. While their where others who used the public domain to speak of the prevalent condition. Onir’s “My Brother Nikhil” boasts of a very unique theme as its story not only is it about an AIDS patient but also delves into the subject of homosexuality. The story unfolds in Goa between the years 1987 and 1994 and tells the story of Nikhil, a very adorable guy whom everybody loves. His life comprises of his family, which includes his father and coach Navin, his doting mother Anita, his elder sister Anamika who is his closest pal and confidante, Leena who wants to marry him and his boyfriend, Nigel. The movie takes a turn when Nikhil is arrested for some reasons. His parents who are unable to face social humiliation abandon him and friends and colleagues shun him too. Life is never the same for Nikhil as he is later sent to a hospital and kept in solitary confinement, the reason being that he has been tested HIV Positive. During this time, it is only the love of his sister Anamika and the comradeship of his friend Nigel that pulls him through the crisis. The two along with Nikhil fight relentlessly in pursuit of justice and social acceptance. The theme of My Brother Nikhil is both emotionally compelling and socially relevant backed with some brilliant performance. The entire film has a certain amount of subtleness to it. What is noticeable about the film is that the tale of a homosexual protagonist is treated with great poignancy – a trait missing in mainstream movies where a homosexual character only provides with the comic element of the film. Deepa Mehta’s “Fire”, on the other hand, is a tale of two women, married to two brothers, developing a relationship with each other in the congested streets of middle-class New Delhi. However the film had not much to offer to the Indian lesbians. In its portrayal of two married women falling painlessly in love, there was, as the lesbian writer VS pointed out, no attempt to take on the “anarchic and threatening emotions that accompany sexual practices generally considered perverted, criminal and taboo”. Nevertheless, lesbians watched with alarm as the attacks on the film gathered intensity. Even though the Censor Board had, to everyone's surprise, cleared the film without cuts, right-wing groups where in no mood to accept that verdict. On 1 December, Pramod Navalkar, Minister of Culture for the state of Maharashtra told newspapers that lesbianism was “a pseudo-feminist trend from the West and no part of Indian womanhood”. The next day movie theatres in Mumbai that were screening Fire were attacked by mobs of men and women. The day after, theatres in Delhi were targeted. In the ensuing debate in the upper house of Parliament only detractors of the film could actually bring themselves to say the word ‘lesbian’. On the other hand, the MPs insisting that Fire should not have been attacked would do so only in the most general terms: it was as though lesbians were purely symbolic, unnamable markers of the director's right to creative freedom, of the audience's democratic rights to watch what it chose, or of the right wing mob's fascist intolerance.

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Women in India are not entitled to any sexuality, so the additional trauma and jeopardy of those who do not ‘fit’. Until she meets someone else or, more happily, a group, she feels she is the only freak in the world who feels this way. Then there is the pressure to marry, and there are well documented cases of suicides in Kerala traceable to this. The fact that all these women came from the labouring class throws out the ‘elite, Western corruption' stereotype.’ Ruth Vanita, professor of Liberal Studies at the University of Montana, in “Love's Rite: Same-Sex Marriage in India and the West” states that same-sex relationships have their roots in the past - not just elsewhere but also in India - and she anchors her argument on the 14th Century devotional texts in Sanskrit and Bengali which talk of the birth of a heroic child, Bhagiratha, to two women with divine blessings. Triggered by same-sex joint suicides in India by couples unable to deal with the demands of a traditional society, Ruth Vanita tries to prove that homosexuality is not peripheral but central to modern culture. Her premise in the translation of Hindi stories of Pandey Bechan Sharma is her belief that “Writing the history of homophobia is as important as writing the history of samesex relationships.” Under the pen name ‘Ugra’, literally meaning ‘extreme’, Sharma wrote, in 1927, a series of stories called “Chocolate”, remarkable or notorious for speaking openly of male-male desire at a time when sexuality of any kind was absent from public discourse, and same-sex desire was virtually unimaginable. In its day, the book sold widely, going into a second edition within weeks. The stories caused a furore and led to modern India’s first public debate on homosexuality, representing, in the 1920s, a level of dialogue that those of us in the modern queer movement have cause to envy. While Ugra, a known nationalist and a Gandhian, was explicit in his intent to “expose and eradicate homosexuality”, his critics argued that, in his “descriptions of beautiful boys”, he attracted his readers to “unnatural misconduct” rather than repulsed them. Each of the stories, it is true, carry clear messages that condemn same-desire and offer dire consequences for the protagonists who espouse it. Yet, as Vanita points out, in a context of utter silence, even condemned characters constitute a history, and form a picture, however distorted, of “the urban Indian homosexual and bisexual men’s social life and language in the early 20th century”. With a lengthy and excellent introduction that guides the reader through the complexities of Ugra’s work, Vanita argues that the stories are open to many readings. Many of his characters, for example, were upper-class, educated, working professionals. Except for one story set in jail, none were thought to have turned homosexual due to the absence of women. Familiar tropes in modern homophobic literature - of disease, mental illness, and the lack of women - are absent. None of the characters suffer from guilt. In each of the stories, the protagonist happily expresses his desire, and while there is one main morally dissenting voice, there are others that accept and appreciate the desire. In essence, the stories - while clearly against same-sex desire in narrative - also offer it space. In the 1920s, when Chocolate was perhaps the only publicly accessible homosexual text, its potential for subversive reading cannot be undermined. ♦♦♦ The Indian constitution which is supposed to contain the best taken from the then existing constitutions has shown a remarkable inability to amend itself regarding section 377. It is clearly anachronistic and regressive and should have been removed from the statute book a

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good while ago. The criminalization of homosexual conduct is unreasonable, arbitrary and a gross violation of human rights on the following grounds: - It violates right to liberty guaranteed under Article-21 of the Indian Constitution, which covers private consensual sexual relations. - It discriminates on the basis of sexual orientation: forbidden under Article-15 of the Constitution - It violates the enjoyment of civil laws and gay men and lesbians and leads to other adverse effects: enables and perpetuates social stigma and police abuse The Indian government recently reaffirmed its stand against homosexuality in India, a move that could drive the gay community further into the fringes of society. Arguing before the Delhi High Court, the government argued that the “…deletion of the said section can well open flood gates of delinquent behaviour and be misconstrued as providing unbridled licence for the same” and that the “Indian society is intolerant to the practice of homosexuals/ lesbianism”. If one were to accept the government's standpoint, then many existing pieces of legislation concerning women's rights and Dalit rights would not have been enacted since there are many sections of society that consider wife-beating or dowry taking to be consistent with “tradition and culture”, just as they consider untouchability to be the “natural order” of society Thus, according to the state it is not just its function to, but actually its duty to stop ‘unnatural sex’, or else the social order would break down. But in the course it also stands the risk of actually pushing the Indian polity and the Indian society into a increasingly fascist mode, where there is only one belief that is accepted and culturally acceptable, therefore legally sanctioned, and anything that goes against it has to be suppressed, criminalized, and obliterated. All justified in the name of culture. It would ring in the breakdown of our cherished pluralistic and tolerant society. The government's position has spurred a whirl of discussion among gay groups on the Internet. Many have talked about the changes in attitudes as well as rights of gays all over the world. The U.S. Supreme Court has struck down Texas's anti-sodomy laws; two provinces in Canada - British Columbia and Ontario, have ratified same-sex marriages, while in Britain, homosexual couples will soon be offered a civil partnership conferring upon them the same legal rights as that of heterosexual couples and in South Africa, Nepal, Sri Lanka existing laws were modified to grant equality even on the basis of sexual orientation. “At least people should know that we exist,” was one comment on the Internet. “Even the UN recognizes that being gay is not a disease. We do not want sympathy and we do not want support. All we ask for is our right to live our life the way we want to without hurting others.” The most serious criticism is that the government's position will further marginalize the gay community in a tradition-bound society. This will only drive it further underground, with serious negative consequences in an age when HIV/AIDS is set to assume pandemic proportions. The question to be answered is in the context of the above discussion is, how then can we approach the question of the reform of sec 377 in the Indian context. NAZ foundation in its PIL did not ask the High Court to remove Section 377. It simply asked it to declare that it should no longer apply to consenting adults. In support of this it cited the problems faced by gays, lesbians and trans-genders in leading their lives, as well as the

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practical problems caused by Section 377 in areas like HIV/AIDS communication. Because of Section 377 activists engaged in the vital effort of combating AIDS could be considered to be engaging in illegal activities. The Delhi High Court’s response was to summarily dismiss the case without even considering the argument. It didn’t rule either way, but instead dismissed the case on the grounds that the petition did not prove evidence of people who had actually suffered from Section 377, for example in the form of a FIR. In the absence of such evidence the Court questioned what the locus standi of Naz was in filing this petition. So is homosexuality an import from the west? Well the only thing that was imported was section 377 of IPC, which was brought in and gifted to us by the British. The British must have found homosexuality prevalent enough and with enough freedom and social sanction to have their Victorian morals shaken, and would therefore have wanted to put a stop to such ‘vile native’ practices by legislating appropriate laws. It is not homosexuality that is a western import, it is its criminalization. In the end a rethinking of the section 377 may be done through the words of Oscar Wilde, one of the most popular sufferer in the hands of Victorian Puritanism, who on being cross-examined on same-sex love states: “It is that deep, spiritual affection that is as pure as it is perfect . . . It is in this century misunderstood, so much misunderstood that it may be described as 'the Love that dare not speak its name', and on account of it I am placed where I am now. It is beautiful, it is fine, it is the noblest form of affection. There is nothing unnatural about it, and it repeatedly exists between an elder and a younger man, when the elder has intellect, and the younger man has all the joy, hope and glamour of life before him. That it should be so, the world does not understand. The world mocks at it and sometimes puts one in the pillory for it.”

- Tathagata Dutta (M.A., English Literature, University Of Delhi)

Acknowledgements • • • • • •

“Prayer, punishment or therapy? Being a homosexual in India” By Vinay Chandran “A perspective from India: Homosexuality stands criminalized because of a mid 19th century colonial law” “Breaking the "cultural" straitjacket: why sexual orientation and gender identity are issues on the global south's agenda.” by Aditya Bondyopadhyay, legal consultant / Naz Foundation “There are no short cuts to Queer utopia: Sodomy, law and social change” by Arvind Narrain “Facing the mirror: Lesbian writing from India” by Ashwini Sukthankar. Manupatra.com

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