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 hush-
hush 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 same-
sex 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