Section 377 may not be a priority with any parliamentarian
The SC’s plea to Parliament is mouthwash. However glaring the case for a modernisation of this law, it is doubtful whether it will be a priority with any parliamentarian, writes Farrukh Dhondy.columns Updated: Dec 25, 2013 01:41 IST
A middle-aged male Bollywood actor recently declared that he was a virgin. Other prominent males and females came out too. It was not clear whether this acute deprivation was being claimed as a virtue.
I must admit to having bitten into the forbidden fruit — OK, if you must, several harvests of it — so can boast no such virtue and if I did there would be DNA tests to catch me out. (I have five beautiful children — obviously mothers’ genes!)
An Indian magazine recently ran a sex survey in which they asked among other questions: ‘Have you ever had a homosexual experience?’ Eighty-four per cent of respondents said ‘no’ and 10% said ‘yes’. Of these 13% were male and 6% were female. The other 6% of the sample said they ‘didn’t know’.
I suppose I must admit being in this latter 6%, only because I can recall that as a five-year-old in Chennai (then Madras) a slightly older neighbour recruited me to ‘play koonjies’ which, if I recall correctly involved touching each other’s genitals. Apart from that experience and once being molested by a paedophile in a cinema in Mumbai when I was eight years old and terrified, I plead homosexual virginity.
A sex survey by another Indian magazine some years ago ventured further. It asked Indian males if they had ever had sex with a hijra, popularly known as a ‘eunuch’ but anatomically classified in most cases as a ‘cryptorchid’ an individual who is born a male but whose testicles are trapped and crushed inside his skeletal structure giving rise to a hormone imbalance and a manifestation by the body of both male and female secondary sexual features — breasts and beards, for instance.
A surprising percentage of males said ‘yes’ they had. Since hijras are famously passive in their sexual activity, one would presume that this percentage of males had by their own admission indulged in anal sex.
Now the Supreme Court of India has overruled the earlier opinion of the Delhi High Court that Section 377 of the Indian Penal Code, which makes sodomy a crime, is anti-constitutional. The apex court has in effect reinstated the crime of buggery.
The prohibition of buggery began with Elizabethan Puritanism and was introduced into the Indian Penal Code in 1828, the era in which Suttee was banned and in which Thomas Macaulay’s ‘Minute’ introduced English education to India.
In the 1960s the crime of buggery between consenting males was removed from British law. Britain has since, with pressure from a strong gay and lesbian lobby, treated sexual freedom between consenting adults as a human right and has in the last 10 years legalised partnership and now marriage between couples of the same sex.
One of the arguments which induced the Delhi High Court to declare Section 377 unconstitutional was that the statute was used by police and others to blackmail those who could be proved to have indulged in sodomy. The apex court in its judgment said that Section 377 was not in itself guilty of sanctioning or mandating such blackmail and the fact that anyone misused the law was no reason for ruling it unconstitutional.
It noted that in the last 150 years only 200 people have been prosecuted under the law, and some of these for acts with animals rather than humans. The judges said they were merely interpreting the legality and referred the modification of Section 377 back to the legislature.
Public opinion in India today has been stormed by the long-due aggressive assertion that a woman’s body is hers to do with as she chooses and not in any sense the property of a male, whether he is married to her or not. The logical extension of this assertion is that it is the same for the male population.
So what consenting males do with each other’s bodies is no business of the criminal law.
The story goes that Queen Victoria when asked to sign an anti-homosexual Act of parliament to make it law, refused to believe that there were female homosexuals. Her imagination didn’t extend to visualising or conceiving what they could possibly do with each other’s bodies so all acts of lesbian sex remained outside the purlieu of British criminal sanction.
The ruling of the Supreme Court deeming the law to be constitutional without considering that it violates or contradicts the fundamental rights to every citizen guaranteed by other sections of the same constitution is a blow to male gays. That it criminalises the professional activity of cryptorchid sex-workers is a small but certain problem. The old argument of police coercion or blackmail certainly comes into play.
The court’s plea to Parliament is mouthwash. However glaring the case for a modernisation of this law, it is doubtful whether it will be a priority with any parliamentarian. One can hardly see Narendra Modi at a mass election rally adding this issue to the promises of his manifesto. No other politician will venture. Are there votes in it?
There could be if the Uttar Pradesh eunuchs form a solid vote-bank and make an offer to various political outfits.
Farrukh Dhondy is an author, screenplay writer and columnist based in London
The views expressed by the author are personal