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When misreading becomes law

The Victorian-era Indian Penal Code created the legal category of ‘unnatural offences’.

Published: December 12, 2013 3:32 am

Madhavi Menon

The Victorian-era Indian Penal Code created the legal category of ‘unnatural offences’.

It is shocking that the Supreme Court has moved in a direction that ensures less,rather than more,safety to a significant portion of the country’s population. It is equally shocking that the “final” decision on whether this country can outlaw homosexuality or not has been left to Parliament. Several measures can and will be taken to counter this judgment. Two that urgently need to be considered are as follows.

Both the Delhi High Court’s ruling in 2009 and the SC’s ruling yesterday are based on two fundamental misreadings that have allowed Victorian morality to become the law of the land. First,sexual acts “against the order of nature” do not necessarily mean gay sex. And second,anal sex cannot be identified only with homosexuality.

In July 2009,the Delhi High Court ruled that Section 377 of the Indian Penal Code could no longer be used to criminalise consensual sex between adult men and women. Titled “Unnatural Offences”,the section that was read down states: “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 10 years,and shall also be liable to fine.” The marginal explanation clarifies that “[penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.” Even though the section technically covers heterosexual non-reproductive sex as well,in practice it has mostly been used as a tool with which to harass gay men. And though no one has been sentenced to life imprisonment on its basis since Independence,it has nonetheless retained its power to demonise anal sex,and also influence the public misperception that anal sex is an exclusively gay male act. These are both cases of gross misreading. “Acts against the order of nature” cannot be understood to refer to homosexuality alone,and anal sex is not an exclusively gay male phenomenon. No one seems to have considered the possibility that people,no matter what their sexual orientation,engage in multiple forms of sexual activity at different points in time.

But the high court judgment also did something interesting that should allow us to take the fight forward,not on the basis of a liberal understanding of rights — that is,we should all have them — but on the basis of analytical reading. In support of its decision to read down Section 377,the high court judges noted that: “in 1860 when we got the Indian Penal Code,which was drafted by Lord Macaulay,they inserted s.377 in the Indian Penal Code,which brought in the concept of ‘sexual offences against the order of nature’. Now in India we didn’t have this concept of something being ‘against the order of nature’. It was essentially a Western concept which has remained over the years. Now homosexuality as such is not defined in the Indian Penal Code,and it will be a matter of great argument whether it’s ‘against the order of nature’.”

The judgment states,quite startlingly,that homosexuality as such is not defined anywhere in the IPC. Nor,it adds,was there a concept of a category of sexuality “against the order of nature” in India before the enactment of the IPC. The import of this assertion is that the law,according to the deposition cited by the Delhi High Court,created homosexuality where it did not exist before. And it continued to create it in order to have a category to penalise and harass. Such a realisation,though not articulated as such by the court,has startling reverberations. Is it the law that creates sexuality? If sexuality is purely or largely a legal construction,then the court is caught in a bind: if it reads down a particular interpretation of Section 377,then does it also get rid of sexual identity? It is this,more radical,understanding of the 377 judgment,brought up in the case filed by the Naz Foundation,which needs to be teased out in order to develop an anti-colonial understanding of sexuality. Let us use in our favour the Victorian squeamishness that prevented the naming of homosexuality even in the framing of the law.

We have to highlight these two misreadings of Section 377 because they allow us to ask how homosexuality came to be the recipient of the law in the first place. No police office or court in this country must henceforth be able to penalise gay men on the basis of Section 377: homophobia is simply not written into law.

The writer is professor of English at Ashoka University and has published books on queer theory.

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