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Article 377 of the Indian Penal Code and "The Love that Dare not Speak its Name"

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Message Prakash Kona

The law is meant to be my servant and not my master". James Baldwin

The first and foremost thing that colonialism will do is attack th e imagination. Colonial mentality is a deadly virus that numbs the critical faculty and injects mediocrity, which in turn paralyses the nervous system, weakens the heart, and turns the patient into a mindless zombie. That's what is wrong with the judgment that criminalizes homosexuality by not repealing an outdated colonial law that ought to have disappeared on the midnight of August 15, 1947, when India was declared independent of British rule. Had we thrown the colonial past and its retrograde institutions into the gutter we wouldn't be going through a lot of avoidable misery that we have been going through for decades in this culturally illiterate nation.

The Indian Constitution is the product of a colonial-era mindset and it is time that we wrote a new constitution that reflected the needs of another world in the making, a constitution not more than a page long, which the poorest of the poor Indian can memorize without effort and seek justice for him or herself. The judges, in articulating a basis for an age-old law, were merely obeying a colonial constitution sustained by a corporate state and overseen by an imperial power.

The Article 377 clearly states in the part on "Unnatural offences":  "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine."

One of the statements in the Supreme Court judgment that upholds the constitutional validity of Article 377 is as follows:

"42. Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the latter category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification. What Section 377 does is merely to define the particular offence and prescribe punishment for the same which can be awarded if in the trial conducted in accordance with the provisions of the Code of Criminal Procedure and other statutes of the same family the person is found guilty. Therefore, the High Court was not right in declaring Section 377 IPC ultra vires Articles 14 and 15 of the Constitution."

First, the distinction made between the "ordinary" carnal intercourse and the anti-nature carnal intercourse is anything but a meaningful one. I seriously would like to know what this famous distinction is that is being made between somebody who ordinarily "fucks" or gets "fucked" in the ar*e every day and someone who goes against nature once in a way and is doing the same thing. While the law might include heterosexuals, it is pretty obvious that it would only be in the rarest of rare situations. We live in a society that legitimizes patriarchal violence against women on a day-to-day basis. Sexual violence in marriages and heterosexual relationships in general is more or less accepted as a part of life. There is enough philosophy and psychology doing the justification part; I don't see any need of going deeper into it.  

In the following paragraph the judgment further states:

"While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a minuscule/ fraction of the country's population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution."

This doesn't make too much sense either. First, whether it is two hundred persons or two persons they are individuals who have been prosecuted and this in fact is more than enough basis to strike down the law. Secondly, the judgment does not talk about the fear that the law inculcates in well-meaning people who are aware of what the law is all about. It is not easy for them to experience fully and freely their emotional lives when there is a law that comes in the way of their happiness. Most importantly, the law in itself is not the issue. The bigger issue is the lack of imagination on the part of the judgment. Imagination is the hallmark of the brave and the compassionate; likewise, mediocrity is the deadly fear of being creative for its own sake. That lack of imagination on the part of the judges and the consequent mediocre judgment, in my view, needs to be sincerely mourned.

I am not saying that mediocrity is a feature only of societies that were colonized. Wherever large masses of people are indoctrinated, the result is a mediocre society where the letter of the law becomes more important than the spirit. The thing about colonial societies is that power lies in the "letter" and from the clerk upwards to the highest authority everyone wants power merely to manipulate the system and keep the status quo intact.

A similar kind of mediocrity we see in developed nations when it concerns the working classes, political dissenters, and third-world immigrants without the means to fight back. That is because they have a system of stealing using the law as a mask and most of the stealing is from exploitable labor. Colonialism creates a different kind of mediocrity; it attaches us to a past that does not exist and leads us to a future that is not there. To view colonialism as a system of mediocrity--it means that we imitate the "west" because we see no way out of it.

The black pacifist Bayard Rustin who played an important role in shaping the nonviolent campaign of the Civil Rights Movement in America (but often sidelined owing to his homosexuality) observed in the 1960s that: "The barometer of people's thinking was the black community. Today the barometer of where one is on human-rights questions is no longer the black, it's the gay community." Rustin added: There are great numbers of people who will accept all kinds of people: blacks, Hispanics, and Jews, but who won't accept fags. That is what makes the homosexual central to the whole political apparatus as to how far we can go in human rights."

Sexual rights are not merely about the "sex" act as is made to look like by those who are opposed to the rights of people with a different orientation. They are essentially about lasting and transformative relationships with the ones that preserve your sense of self-hood and give you a sense of belonging and not merely about satisfying what is between the legs. It is just never as arbitrary or as anarchic as that except in a distorted imagination.

The question of the rights of sexual minorities is central to the question of human rights. The former is a threat to patriarchy from within. Gay men defy notions of masculinity and lesbians redefine our whole understanding of womanhood. What the gays, lesbians, bisexuals, and transgenders will challenge is not just how we think about human rights, but the very foundation of our grammar and syntax, in short the language we take for granted as being a reflection of reality. Our favorite, time-honored distinction between what constitutes the notion of "men" as opposed to "women" is brought to a severe test. We have to rethink our past, present, and future -- the basis of both history and culture -- if we have to reimagine gender as a negotiable term whose meaning is relative and situational rather than constant and neutral.

Calling the transsexuals "heroes" of the modern world, Jean Genet, in his last book Prisoner of Love, notes the ambivalence surrounding gender:

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Prakash Kona is a writer, teacher and researcher who lives in Hyderabad, India. He is currently Professor at the Department of English Literature, The English and Foreign Languages University (EFLU), Hyderabad.

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