As Section 377 Heads to Its Demise, Let’s Consider How Ridiculous the Law Really Is

Yesterday, July 10, the Supreme Court started a week-long hearing to decide if Section 377 is unconstitutional and needs to be struck down, which means the law may finally be scrapped (again).

Let’s play a little game to understand what’s going on. First let’s divide ourselves into two groups. People who like the colour red, and those who like the colour blue. Now, let’s set cultural norms that say red is a bad colour – it is indicative of violence, it reflects anger and danger. It is basically the colour of murder and blood. On the other hand, let’s make blue a ‘cool’ colour.

Having set up these arbitrary rules, people who like red are now shamed for their preference. Some from the blue camp will go as far as saying that people who like red must be mentally ill to like something as awful as that. They need help to culturally orient themselves and become ‘normal’ like those who like the colour blue.

Let’s reinforce these rules by actually criminalising the people who like red. So now they can actually go to jail for something as innocuous as preference.

So now, even if you like red, you don’t say it out loud. People who like ‘this’ colour are now shush about their favourite colour. In this situation, liking both colours isn’t an option either.

As you probably guessed, the colour red signifies homosexuality – or any consensual sexual freedom for that matter, while blue stands in for hetersexuality. And the SC is now hearing arguments on our right to like whatever colour we please. Sexuality, as Mulkul Rohatgi, one of the lawyers arguing against Section 377, once rightly said, is not a choice but a genetic phenomenon. Before cultural conditioning takes over, babies and children just happen to like some colours more than others, for no reason really. We don’t choose our sexuality, it is what it is.

The ruling NDA government is currently acting like that one uncle who is too constrained by groupthink to venture beyond the societal norm, but also doesn’t want to take a stand. Now that the constitutionality of the law is under scrutiny, the government now says it will stand with the SC ruling and has no clear stand of its own.

But this official neutrality hasn’t deterred other BJP leaders from spewing hatred against the LGBTQIA community. Just yesterday, Subramaniam Swamy declared homosexuality against Hindutva, said it needs a cure and also declared it a threat to national security.

The Congress isn’t really faring better on this issue either. While the BJP has officially declared its neutrality, even as its supporters and leaders have made their opposition clear, Rahul Gandhi’s party hasn’t tweeted about the case at all. The Congress then is like a closeted support, too scared to voice support but also scared of losing its liberal badge. Come on Rahul, get it together. Meanwhile, to its credit, the All India Mahila Congress has tweeted in support of scrapping 377.

Here’s what Section 377 of the Indian Penal Code actually says:

Unnatural offences.—Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with 1[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. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

‘Unnatural’ includes everything from anal sex to oral sex regardless of the two (or more) people involved and their gender. This poem by Akhil Katyal is a good reminder of the things covered under this law:

As Arvind Datar argued in court yesterday, “It is part of natural orientation of a man. How can it be a crime? This is orientation of man and it can never be a crime.”

Apart from the fact that this law pre-dates our constitution itself, the law also reflects outdated ways of thinking about sexual orientation. For instance, it’s been decades since global organisations removed it from their list of disorders. Even the Indian Psychiatric Society has publicly stated that homosexuality has nothing to do with mental illness, so can we please nip this insult in the bud, now?

It’s highly likely that we will win this one and the law will be read down. But even then, there are miles to go in terms of equality. Equal right to marriage, adoption, legal guardianship etc. are still going to be contested issues that we will have to fight for. It’s not an easy road ahead, and it hasn’t been easy up till now, but I’m positive that the rainbow will shine. 

Mandar Gupte, 24, is currently working in an Adivasi community development organisation called Disha Kendra. He tweets at @gupte_mandar and you can find him on Instagram at mandargupte93. 

Featured image credit: Reuters