Sex, law, and the nation: the Indian Supreme Court reinstates a law criminalizing homosexual acts

To focus only on the sexual politics misses the critical dimension of the unfolding debates in India about secularism and sovereignty.

Samir Dayal
19 January 2014

On December 11, 2013, India’s Supreme Court reversed the July 2009 ruling of the Delhi High Court decriminalising same-sex relations between consenting adults in private.  The decriminalizing ruling by the Delhi High Court had understandably been received with euphoria by the LGBTQ community, many like Sunil Mehra, former editor of the Indian edition of Maxim expressing relief that they could finally live normal lives.  The judgment by the Supreme Court came as a “shock” to many progressives and activists, who characterized the reversal as the Indian legal version of Bowers v Hardwick.  This was a 1986 ruling in which the US Supreme Court upheld, in a 5-4 decision, Georgia court’s sodomy law criminalizing homosexual sex between consenting adults, denying a “fundamental right” of “homosexuals to engage in sodomy,” irrespective of “the fact that homosexual conduct occurs in the privacy of the home” and regardless of whether it is “an inadequate rationale” to support the law on the basis of popular belief that sodomy is immoral.

This ruling was itself reversed in 2003. Progressives and other supporters of the Delhi Court ruling can only hope that the Indian Supreme Court will reverse itself in the future.  Indeed some think it is inevitable. But how should we understand this reversal now?

The key legal code at issue is the Indian Penal Code (IPC)’s Section 377, otherwise known as the Unnatural Offences Act. The section reads: “377. 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 a term which may extend to ten years, and shall also be liable to fine.”  In the contemporary law courts, and on the basis of this construction of homosexuality, the law calls for harsh strictures against and punishment (for up to 10 years) for “homosexual acts.” With its latest ruling, the Supreme Court seems to have reinstated the strictures against such acts.  In a country famous for the Kama Sutra and the well-known erotic sculptures of Khajuraho, it is ironic how prudishly the space of sanctioned sexuality is policed even behind closed doors.

Prima facie consideration would suggest that the main issue is morality, as Section 377’s language suggests.  But this may not be the whole story.  There is a dimension of cultural and political sovereignty at stake as well, hearkening back to the era of British colonialism. 

After all, Section 377 of the Indian constitution derived its language in 1860 from an archaic law of the colonial British canon characterizing homosexual acts as “unnatural.”   What is remarkable is that the criterion of consent between or among adults is irrelevant to considerations of legality here, and so persons engaging in such acts are punishable whether or not they enter into same-sex relationships voluntarily or out of mutual desire as adults in possession of their faculties. Although the Delhi High Court ruling of 2009 seemed to have advanced democratic rights even for sexually minoritized groups and individuals, India’s secular polity now appears to have regressed to the level of states such as Iran and Saudi Arabia, not to mention Afghanistan, where “homosexuality” is regarded as perversion, punishable by imprisonment or even death.

This regressive tendency takes on additional dark undertones if considered as part of a general hostility to any change threatening compulsory heterosexuality and patriarchy, which are construed as emanations or symptoms of the “natural” social order.  The case of Mulala Yousafzai (the student activist for girls’ and women’s rights to education who was shot in the head on October 9, 2012 by a member of the Taliban in the Swat Valley and later nominated for a Nobel Peace Prize for her advocacy of girls’ education in 2013) suggests the risk borne by anyone who challenges extremely conservative sexual regimes from within.

Is the re-criminaiization of same-sex relations under Section 377 in India equally indicative of the perceived threat to the hegemonic sexual regime? The answer to that question, I would suggest, might be a “Yes, but”—because there are other dimensions to the issue.

For one thing not all “homosexual acts” are perceived as carrying the same level of threat, because it is not just a matter of disturbing the order of procreative sexuality. In some of the cultures most hostile to “homosexual acts” penetration of a man (usually a younger man) by another (usually older) is not itself a marker of either’s real or incipient homosexuality.  It is not a homosexual act, in such cases, that defines homosexuality.

There are also other distinctions to be observed.  Even more threatening to traditionalists than male-male homosexual acts are female-female same-sex acts. It is a double whammy: lesbians are doubly marginalized, as women and as non-heterosexual; even worse, if women are poor or from minority communities, class, religion, ethnicity or caste can compound their marginalization. Among these differences is a degree of commonality.  As Luce Irigaray points out, “all the systems of exchange that organize patriarchal societies and all the modalities of productive work that are recognized, valued, and rewarded in these societies are men's business.”[i]   Yet it is important is to avoid homogenizing all non-heteronormative behaviour as counterposed to a monolithic heterosexual norm.  Even in the domain of non-heteronormative sexuality, difference makes a difference. 

The Indian Lawyers Collective have argued that Section 377 is too vague. There is also an important gay rights discourse that teases apart the contradictions between the sexual and the political even within Section 377.  For instance, it points out that Section 377’s language violates articles 14, 15, 19 and 21 of the Indian constitution guaranteeing equality, freedom of expression and personal liberty to all of its citizens regardless of religion, creed, caste, class and gender. There is therefore a fundamental contradiction embedded within this law of India’s secular democracy. And there are serious implications to glossing over, or overlooking, such contradictions.  Driving non-heteronormative sexual behavior back into the closet risks endangering the lives and livelihoods of people who do not follow the conventional heteronormative trajectories in terms of family, lifestyle, reproduction and work life.  Worse, it could jeopardize social support for, and government funding of, HIV/AIDS prevention efforts.

The Naz Foundation, a gay rights NGO that petitioned the Delhi High Court to decriminalise gay sex, has argued that law has been used to blackmail and visit violence on the bodies of sexual minorities.  Besides, such law quashes any public sphere debate about subjects made artificially taboo by decree.  

Controversial Fire

The controversy surrounding Deepa Mehta’s Fire (1996) is a useful object lesson, illustrating the importance of the issue even in modern Indian democracy, a contemporary society that is so proud of its progress towards modernity, judged by a globalized standard.

Section 377 discriminates indiscriminately, and criminalizes unjustly, collapsing any act that does not conform to a particular, radically traditionalist or reactionary, construction of the “natural” into the catch-all category of “immoral” acts. But it is even more important in a secular state, not to collapse cultural/political codes and moral codes, no matter how strong the urge. The controversy surrounding Mehta’s film became a barometer of an important phase in the ongoing debate about same-sex relationships in India at least since Independence, when the British legal construction of its alleged “immorality” and “unnaturalness” had been dominant.  One of the important lessons to be learned from that controversy was that questions of sexuality are bound up with questions of nation and nationalism, and that there are continuities between perceived threats to heteronormative sexuality and imagined threats to national identity in the context of accelerated globalization.

It has been a decade and a half since Fire was released in India.  The film was represented by extremists in the then-ruling Bharatiya Janata Party (BJP) as a diasporic filmmaker’s disrespectful repudiation of her native culture. The film was, however, approved by the Censor Board for general release with an “adults only” certification in November 1988.  The Censor Board required no cuts, but recommended a change of the name of one of the leading female characters (Sita) to Nita, presumably because it was less provocatively a reference to the mythical Sita (Rama’s consort in the Hindu epic Ramayana), and less obviously anchored to a Hindu context (the name SIta apparently was parsed by detractors as key to the film’s implied critique, specifically of Hindu culture, and therefore was discriminatory against Hindus).

Although the Censor Board’s recommendation may seem quixotic today, its significance can be read in the fact that when it appeared in the theatres the film met with vigorous opposition from traditionalists. A Hindi-dubbed version of the film was distributed with the name change, but that proved insufficient to quell anger among the conservatives. In December 1988 the film was banned in two Bombay theatres. The next day, a theatre in New Delhi screening the film was attacked, and the attackers in both instances were led by women wearing saffron clothing to signal their religious ideology.  They were members of the Shiv Sena, an extremist cadre affiliated with the right-wing BJP. They entered the theatre, burnt down posters and destroyed furniture. 

It is telling that women were leading the charge here and elsewhere, their protests targeting especially women among whom the film was gaining cachet, for it spoke to their conditions and was made by a woman with an alleged western feminist agenda. Mehta herself was accused of having produced a Trojan horse, abetting the unwelcome encroachments of an “amoral” globalization upon the body of Indian society. 

Perhaps relatedly, the film was also banned in Singapore and Kenya at the urging of diasporic Indians in those countries. The Shiv Sena decried the “lesbianism” depicted in the film as being inimical to local Indian tradition and expressed its fear that the film would “spoil” Indian women.  

For her own reasons, Mehta disavowed her interest in lesbianism per se, arguing that the film was about having “choices,” a formulation that perplexingly invokes a neoliberal ethos at odds with the progressive agenda she implicitly or explicitly avows.

Be that as it may. What is more important is that their fear suggests that even detractors of the film acknowledged the film’s power to propel a woman to choose to follow her own desire even if it was inimical to heteronormative and traditional “family values.”  This choice was seductive, dangerously seductive, because it threatened the institutions of marriage and family, not to mention religious orthodoxy and the culture’s version of what is deemed somehow distinctively native to Indian culture.  In short the film was a landmark event that put in question the issue of an echt Indian sexual morality, as almost the last refuge of the national Thing, the final line separating it from western culture in the era of globalization.

Indian morality in a globalizing world

The legal debate about the Supreme Court’s reversal has similarly been framed largely within a discourse of a specifically Indian morality. Some defenders of the Supreme Court reversal, for instance, put it quite simply and unapologetically: “We are living in India, this is not America, and according to the morals of our society, this is a correct judgement.”  Another opined, “Homosexuality is a western import - we have assimilated some good aspects of their culture but this is a bad aspect of their culture. We cannot ape the West blindly, otherwise how will we protect our culture?”  Many supporters of gay rights and observers with a liberal take on these developments decry India’s slide back from a “modern” and “enlightened” view of sexuality. 

Yet perhaps the impression of backward motion in the world’s most populous democracy has as much to do with a perceived threat to cultural sovereignty in the contemporary globalizing conjuncture as it has to do with sexual morality.  To focus only on the sexual politics misses the critical dimension of the unfolding debates in India about secularism and sovereignty.

[i] Luce Irigary, "Women on the Market,” in The Logic of the Gift: Toward an Ethic of Generosity, Ed. Alan D. Schrift (New York: Routledge, 1997): 174-89, esp. 174.

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