Making criminals of us all
A new party,a more engaged class

Dear Supreme Court,read the Kama Sutra

India has always been on the side of erotic freedom.

Ruth Vanita

India has always been on the side of erotic freedom.

Justice Singhvi asked commentators on the Supreme Court judgment in the Section 377 case to “read the judgment first”. Having read it,my question is: what is the social or national interest that necessitates depriving consenting adults of their right to engage in sexual relationships in private? In a democracy,citizens can only be deprived of individual rights and freedoms if the exercise of these freedoms harms someone or endangers the national interest or security. The judgment nowhere states what the national interest is in banning some types of sexual relations.

“Man is many things,but he is not rational,” wrote Oscar Wilde. Rationally,a relationship between two consenting adults affects nobody but themselves. But some people,imagining the sexual acts of others,feel irrational fear and disgust. This fear often leads them to persecute those whose sexual practices may be different from their own,and to enshrine such persecution in irrational laws. Wilde’s imprisonment and untimely death,and the persecution of Ramchandra Siras in Aligarh in 2010,leading to his untimely death,for engaging in sex in his own bedroom,are examples of the terrible toll taken by these laws.

The judgment claims that the abolition of anti-sodomy laws in democracies worldwide (from Europe to Latin America to South Africa to Canada) is irrelevant because “these judgments cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature”. Consider the logic here. Britain exported an anti-sodomy law into India in 1860. The Indian legislature did not “enact” this law; it simply accepted it. In 1967,this law was abolished in England. The abolition of the law in England is not relevant,the court would have us believe,but somehow this archaic law imported from England remains relevant.

Most ancient societies,from Greece and Rome to India,Egypt,China and Japan,accepted same-sex sexuality as one dimension of a wide erotic spectrum. Same-sex relations were never unspeakable in India as they were in Europe,nor were people engaging in same-sex acts ever executed in India as they were in Europe. Pre-colonial Indian literature and art depict incidents of sex-change (now termed transgender/ transsexual) and erotic love between two men or two women (now termed gay,lesbian or bisexual). One version of the 14th-century Krittivasa Ramayana tells the story of two women,Chandra and Mala,who make love in the rainy season,inspired by Kamadeva; one becomes pregnant with divine blessing and has a heroic son. Major poets,such as Mir Taqi Mir and Najmuddin Shah Mubarak Abru wrote about male-male romances and sexual relationships,while others wrote about female-female amours that were explicitly sexual.

When they came to India,many Britishers were shocked by the variety of sexual arrangements they found here. They set out to impose their Victorian puritanical norms on India,and to a large extent they succeeded,as demonstrated by the fact that many Indians today know nothing about the history of sexuality in India,and therefore imagine that homosexuality was imported from the West. Ironically,it was homophobia,the irrational fear of homosexuality,that was imported from the West,and even more ironically,now that the West is moving towards greater tolerance,some Indians want to embrace a sexual intolerance antithetical to our traditions.

More importantly,such intolerance is antithetical to democracy. Democracy is based on respecting every individual’s right to liberty,dignity and privacy so long as these do not harm any other individual or national interest. Democracy also requires protecting minorities against the irrational prejudice of the majority. Criticising the Delhi High Court’s 2009 judgment which established the right of consenting adults to have sex in private,the SC states that “a miniscule [sic fraction of the country’s population constitute lesbians,gays,bisexuals or transgenders.” It cites an absurdly low figure for men and ignores women. Let us accept for the sake of argument that this figure is correct. Would it be acceptable to institute a law criminalising Jews or Parsis or vegans just because they are minuscule minorities?

The judgment claims that Section 377 only criminalises certain acts,not categories of people,such as gay people. However,if penile-vaginal sex is the only type of sex allowed,gay people are automatically condemned to celibacy. Without citing evidence,the judgment states,“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.” This is incorrect; many heterosexual married couples enjoy anal and oral intercourse (outlawed by Section 377) along with penile-vaginal intercourse. Judges who read the fourth-century Kamasutra will discover that.

The judgment also states that the “mouth is not,according to nature,meant for sexual or carnal intercourse”. One may ask,who decides what the mouth is meant for? What about kissing? Is that “meant” to happen in “nature”? If not,should we ban it?

The SC judgment in this matter attempts to put India in the company of dictatorships and theocracies; most democracies now recognise the rights of consenting adults to choose their own sexual practices. However,the tide of history cannot be turned back. Among young Indians,it is irreversibly flowing in the opposite direction. As in Vijaydan Detha’s story “Dohri Joon”,about two young women who choose to live together in defiance of society and are protected by a troop of ghosts,the spirit (or ghost) of Indian traditions is on the side of freedom.

Vanita is co-editor (with Saleem Kidwai) of ‘Same-Sex Love in India: A Literary History’,and author of ‘Gender,Sex and the City: Urdu Rekhti Poetry 1780-1870’.

Do you like this story