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Section 377 is unnatural
The Supreme Court decision to address the issue of the law against homosexuals has finally challenged our unwillingness to talk about sex and sexuality.
There’s an old joke about it being nearly impossible to find law and justice in the same place. For gay citizens of India, the joke would be amusing were it not so true. Living under the sword of Section 377, India’s archaic anti-sodomy law that has been on the books for a 150 years too many, gay people rarely think of the law as justice.
On February 3, however, the Supreme Court may have just taken the first step in changing this skewed relationship and has taken the first step in slowly winning back the faith of thousands of gay people in India and realigning us with democratic and progressive nations across the world that have embraced and institutionalised same-sex relationships.
The Chief Justice of India, Y.K. Sabharwal, along with Justices C.K. Thakker and R.V. Raveendran told the Delhi High Court last week that it had been wrong to dismiss a public interest litigation challenging Section 377. The judges argued that the case must be debated and heard and not simply silenced.
At first sight, these hardly sound like radical words of a landmark judgment. But in the silence that surrounds the lives of gay people, these simple words do resonate deeply. The court may think that they simply ruled by the letter of the law. It may believe that its decision is merely a legal, technical one. It’s actually much more than that — and it’s critical that we realise how important the simplest of decisions can sometimes be beyond the confines of courtrooms.
So what makes this judgment so important? Its importance lies in a refusal to perpetuate the silence that lines the lives of gay people in India. Beyond a technical ruling, the judgment is a reminder to the court and to the nation that the rights of citizens cannot be ignored and that debate cannot be silenced. It is also a reminder to all of us that we cannot simply not engage with issues of sexuality and brush them under the carpet. It is a message that any conception of justice demands that all voices — especially voices silenced — be heard.
We should take the court’s judgment as one addressed to the public of India and not just to the Delhi High Court. Talk about sexuality — debate it, decry it, resist it, curse it, celebrate it, defend it, do what you will, but talk about it. Too many lives are lost each year to violence, guilt, shame, and disease because we remain a society that refuses to acknowledge the reality of sex and sexuality as part of our lives. We refuse to see sexuality and sex as political languages, as matters of public concern that are connected deeply with every facet of our daily lives. We tell ourselves that sexuality is a ‘private’ matter and thereby we allow laws like Section 377 to remain on our statute books.
The Supreme Court judgment has directed the high court to judge the case against Section 377 on its merits. Every citizen of India must do the same. Let us ask ourselves what is so objectionable about gay rights? Gay rights are about equality, freedom from violence, non-discrimination in employment, the right to live lives free of shame and social judgment. Which of these rights do we object to? And on what grounds can we deny them to our fellow citizens?
One must make the judges of Delhi High court realise that as a society, these questions can no longer remain silent. For once we should state it aloud that there can be no reasonable argument that justifies punishing people simply because they seek to love and be with one another. It is then that the Supreme Court’s judgment will truly have its intended impact. It is then that our cities, our homes, our places of worship and our courts will once again become places where the law and justice coexist in its natural state.
Gay people all over the country are celebrating the decision. They are celebrating a rare sense of pride in their courts and their country’s view towards justice. They are hoping that when the petition returns to the high court, the courts realise that it is important for adults to be able to choose whom they love in a free country. They hope that the court will not question the importance of the fundamental rights of any Indian citizen, irrespective of their sexual preference.
