When in 2009 the Delhi high court ruled that Section 377 is unconstitutional and lifted the ban for consenting adults, many thought that it would pull homosexuality out of the closet in the conservative country. Now that a Supreme Court Bench has reversed the 2009 verdict, it came to side with a warped zeitgeist firmed up though a century-and-a-half-old piece of law.
Thus the SC, hailed by the likes of the National Akali Dal and the All India Muslim Personal Law Board, came in league, again, with other 82 countries including Iran and Malaysia with anti-homosexuality laws against sexual activity by lesbian, gay, bisexual, transgender or intersex people (LGBTIs), 83, if one includes Russia, that is in the midst of an anti-gay crackdown on the basis of its new law against “gay propaganda”.
Christopher Isherwood once recalled seeing Laws of Love, a re-make of the banned Different from the Others, a film about the blackmail of homosexuals as a plea for repealing the German law against homosexuals, in which one dream sequence shows a “long procession of kings, poets, scientists, philosophers and other famous victims of homophobia” moving sombrely across the screen, heads bowed, passing beneath a banner inscribed ‘Paragraph 175’. The Supreme Court upholding the constitutionality of Section 377 smacks of that.
A Swiss doctor, Karoly Maria Benkert, who coined the term “homosexuality” in 1869, argued that if the Prussian law had prevailed throughout Europe in the past, many leading figures would have been imprisoned, such as Charles IX, Henry II, James I, Pope Julius II, Napoleon I, Louis XVIII, Frederick the Great, Machiavelli, Michelangelo, Bazzi (Il Sodoma), Shakespeare, Mazzarin, Molière, Newton, Winckelmann, Cambacérès, Byron, von Platen, and Eugène Sue.
In an open letter to the government in 2006, author Vikram Seth, claimed that Section 377 has “been used by homophobic officials to suppress the work of legitimate HIV-prevention groups,” leaving gay and bisexual men in India defenceless against HIV infection as by not recognising them, there will be more problems in the fight against AIDS.
Not that the UPA is not seized of this. But will it risk taking a stand on the issue in the short term, in view of the ensuing elections and rise of the Hindu nationalist opposition? The BJP has said it favours the verdict and will not support any “unnatural act.”
Though the talking point is now about a law that is nearly 143 years old, the Commission on Review of Administrative Laws in a 1998 report had identified 1,300 outdated statutes, of which only 200 were repealed. The onus is more on our legislature that seeks to govern 21st century India with 19th century laws. While economic reforms have managed to keep pace with the changing times, administrative reforms have been caught in a time warp.
Prasenjit Chowdhury is a Kolkata-based commentator
The views expressed by the author are personal