The Supreme Court judgement on Sec. 377 of the IPC has left an entire nation devastated, and the media in general has been very supportive in condemning the verdict. But, ironically enough, it has been highly instrumental in publicising the fact that all LGBT PEOPLE ARE HENCEFORTH RENDERED CRIMINALS, thereby diluting to a great extent the possibility of acceptance of parallel sexualities. The 2nd July 2009 verdict of the Delhi High Court, which had conscientiously read down Sec. 377 of the IPC had begun to open up social spaces for differently-oriented people, and although the closet still remained, doors were being unlocked with remarkable willingness. The Supreme Court’s setting aside of the Delhi High Court verdict and the media’s over-enthusiastic censure of it as exclusively anti-LGBT have indeed turned the road to freedom backwards.
However, what has always escaped me is that since when did Sec. 377 come to be identified as only anti-LGBT? The discourse that Sec. 377 renders LGBT people criminals within the nation-state is remarkably flawed. If the law had to be challenged, should it have been challenged as jeopardising the lives of LGBT people only, and projecting it like a repressive state apparatus licensed to monitor and punish sexual difference? Wouldn’t it have been better to challenge the law on the grounds of the meaninglessness of the phrase ‘order of nature’? Although I understand that it wasn’t really incorrect to read the phrase ‘against the order of nature’ as implying parallel sexualities, it would have been much better if the law was challenged on the grounds that it was terribly vague and flimsy, and therefore can be misapplied, and is indeed misapplied. The difficulty lies in routing the anti-377 argument through a discourse of sexual identity politics in particular. Then, one might contend that the Delhi High Court indeed comprehend this sexual identity politics discourse and comprehended it much too well and did a commendable job in reading the law down in such a way that consenting adults, engaging in different sexual activities other than peno-vaginal intercourse, were brought out of the purview of Sec. 377.
Then , why did the Supreme Court fail to sustain the judgement? What was so easily comprehended by the Delhi High Court remained so elusive to the Supreme Court judges? Maybe they deliberately looked through it! But, my point here is how the media interpreted it, or was tutored (or should I say compelled?) to interpret it.
The Supreme Court has been careful enough to delink all forms sexual identities from the criminal purview, and I quote: “It is relevant to mention here that the Section 377 IPC does not criminalize a particular people or identity or orientation. It merely identifies certain acts, which if committed, would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation.” (p. 77) Now what seems ridiculous, that despite this pronouncement, sexual activities amongst LGBT people (and any form of sexual activity other than peno-vaginal intercourse even among heterosexual couples) by default remains criminalised because they (the LBGT community) cannot/choose not to engage in peno-vaginal intercourse, which is the only ‘legal’ form of lovemaking.
True! On the same page, the verdict mentions something very crucial: ‘Nonetheless, in light of the plain meaning and legislative history of the section, we hold that Section 377 IPC would apply irrespective of age and consent.’ This later statement, which so thoughtlessly contradicts the previous pronouncement, should have been treated as the moot point of the verdict!
The media headline should have been the SUPREME COURT RECRIMINALISES ANY FORM OF SEXUAL ACTIVITY OTHER THAN PENO-VAGINAL INTERCOURSE LEADING TO PROCREATION! Rather than the partially true and awfully irresponsible: SC RECRIMINALISES HOMOSEXUALITY! My question is while a lot of people are now caustically commenting on the irresponsibility of the media, why didn’t the LGBT Community play a more proactive role in getting this across to the media that Sec. 377 was not just “anti-gay”, to put it rather stupidly? When the media is being praised and blamed at the same time (praised because they are upholding the LGBT cause, and blamed because it has forgotten to mention the applicability of the law on any Indian citizen irrespective of their sexual choices), can we indeed blame the media NOW?
The very fact that Sec. 377 entered the public domain through a discourse of sexual identity politics cannot be denied. While the Supreme Court is being criticized for being so mindless in declaring the LGBT population to be a ‘miniscule fraction’ (p. 83), is it also not true that when Sec. 377 was challenged the minority card had been played up much too significantly? Has anyone ever bothered to splash it across the media that it wasn’t indeed a ‘minority’ issue? That Sec. 377 can be applied to anybody?
It is a different issue that this law has victimized LGBT people mostly (recorded and several of them unrecorded); but the problem is this was never ever held up to be a law that did not allow the pleasure of having sex. Why? For in a country like India which still extols the ascetic as heroic, such an issue could not be the ground for challenging an antiquarian law. Right? So, the anti-377 rhetoric had to be overdetermined by human rights of LGBT people. While there’s nothing wrong in that, in the initial stage when Sec. 377 was indeed brought out of the closet to dwell at the cross-roads of public view, it was barely ever popularized as anti-love law! It was never done!
The sexual MINORITY card has been played with much alacrity for, understandably, that’s how one needs to articulate one’s rights and make demands for the same in a majoritarian democracy. But, have we ever thought that when we utter the word “minority” we were not at all talking in numerical terms? “Minority” in this case is more nuanced than just underpinning numbers! It actually refers to powerlessness of the ‘homosexual’ individual in a predominantly heterosexual environment. Has anyone ever tried to point out to the media and educated them that when we are asking for “minority” rights, we are actually referring to our own powerless and deprived state of existence in a society which unquestioningly perpetuates the need for compulsory heterosexuality? Has it ever occurred to most people fighting for LGBT rights that the term “minority” cannot be taken so superficially?
The logic behind Sec. 377 is now being explicated by people in the media. When? After the SC verdict has been pronounced. All this has only been part of small seminars and private conferences so far: If Macaulay had at all brought into force this 1860 law, it was not to stop same-sex activities in India, but rather to deter British citizens for migrating to the colonies for homosexual escapades. Indian homosexuality was never indeed “gay” or “queer” as we understand it today; rather it was an accepted form of social relations; ‘manly’ men willingly engaging in sex with other men interpret it as normal, as long as they are not specially identified by modern nomenclatures: gay, bisexual or queer.
‘Queer’ as informed people understand it today doesn’t really refer to those who wear their sexuality on their sleeves; it applies to heterosexual couples too who say, for instance, find pleasure in anal sex! Most importantly, same-sex activities between men and between women in many parts of the country are rampant, and are not indeed problematic for many as long as they are not marked out as “queer”! For naming an activity runs the danger of being signified as “abnormal” or to reuse the Sec. 377 rhetoric: ‘against the order of nature’!
Have any of these discourses ever been made public, like it is being made now? Had it been so, the very term “minority” would have been infinitely problematized! Since there has always been a lack of personal histories on this issue, because nobody ever spoke about it publicly, the Supreme Court found it easy to dismiss the community as a ‘miniscule minority’, taking the word minority on face value, merely. In any case, it is impossible to determine the exact number of people who are actually non-heterosexual!
For, everyone IS SO in some way or the other! On the other hand, this is also true that those who are indeed part of this ‘community’ (by its lexical and sociological definition) are indeed a numerical minority! It’s a more metropolitan activity! This complexity of the ‘homosexual nexus’ which pervades the entire country, if I may call it so, has rarely been addressed. The ‘don’t ask, don’t tell’ comfort zone in which these activities and liaisons were so far contained, when brought to dwell in broad daylight in the courtroom, have indeed embarrassed the Supreme Court judges who, I believe were indeed unwilling to discuss private affairs in public and shied away from reading down the law. Too many skeletons would have been pulled out of the closet!
Anyway, it is indeed difficult to bring these issues to everyday discourses. But the media could have been tutored to look upon Sec. 377 as an anti-everybody law, rather than targeting a particular community. Even when the English language press and news channels began vociferously protesting against the Supreme Court ruling, none of them ever thought of using a more sensitive headline. But, we cannot really blame them NOW for their irresponsibility! They have been coached to be irresponsible. On top of that, they always play to the gallery, sensationalizing things beyond imagination. What the media has done is to sensationalize the anti-LGBT issue, and won for itself a cause to support. Praiseworthy, nonetheless! But, the “breaking news” potential this issue carried could not be denied.
It’s indeed too late to control the damage.