Section 377 reeks of the anxieties of Victorian Britain and Puritan America.
In 1982,Michael Hardwick,a gay man,was having consensual sex with a male partner in his bedroom in Atlanta,Georgia. Police officer Keith Torick entered the apartment with a warrant (for public drinking) that had been invalid for three weeks. Admitted by Hardwicks housemate,he went straight to the bedroom. Seeing the men,he announced that they were under arrest. I said,for what? What are you doing in my bedroom? Torick showed the warrant; Hardwick pointed out that it was invalid. Torick said it didnt matter,and they had better get dressed and come with him. I asked Officer Torick if he would leave the room so we could get dressed and he said,theres no reason for that,because I have already seen you in your most intimate aspect. Hardwick later challenged the Georgia sodomy law in court,unsuccessfully.
Sodomy laws are intrusive and violate human dignity. People need zones of freedom around them so that they can conduct their most intimate consensual activities unobserved and without interference. A society that protects these zones of liberty is both more just to individuals and stronger as a whole than a society that allows conventional norms to tyrannise over personal dignity. Torturers and concentration camp administrators have long known that the removal of simple bodily privacy is an effective way of insulting human dignity and marking some people as not fully human.
The recent Supreme Court decision overruling the Delhi high court and reinstating Section 377 of the Indian Penal Code is distressing on a number of grounds. As legal reasoning,it is slapdash and almost shocking in its cavalier way with fact and argument. For an appellate court to overrule a lower court on findings of fact (as opposed to issues of law) is highly unusual,occurring only when the lower courts factual errors have been egregious. And yet,the SC judgment simply asserts without argument that the factual record in the Delhi judgment,concerning the extreme burdens Section 377 places on the gay community and on medical workers in the HIV/AIDS sector,is insufficient despite the fact that the case laid out in the Delhi judgment is extremely detailed and solid,and despite the fact that the SC itself extensively cites from an amicus brief by AIDS activist Anand Grover,a UN special rapporteur and one of the original plaintiffs in the case,in support of all the major factual findings of the Delhi judgment. Nor are the legal arguments solid: the key contention of the Delhi judgment,that majority preferences must not trump fundamental rights inherent in human dignity,is never given a careful reply.
Section 377 has all three of the problems that have caused Britain and the US,the two nations that once most zealously supported sodomy laws,to reject them. First,like all such laws,it is absurdly vague. What is the order of nature,one might ask? What acts constitute carnal intercourse? (A law in the books in Florida until 2003 informed over-eager policemen that a mother breast-feeding her infant did not count as an violation.) When such latitude is left for the police,the law virtually invites persecutorial implementation. Indeed,although most sodomy laws in the US,like the buggery statute in Britain,were gender-neutral prohibitions on oral and anal sex,aimed at all non-procreative acts,the laws later came to be enforced almost exclusively against homosexuals. A heterosexual couple who joined Hardwick in his challenge to the Georgia sodomy law were dismissed as petitioners for lack of standing,on the ground that they were in no danger of being inconvenienced by the law,although its wording was fully neutral.
Second,such laws are intolerably intrusive in any nation committed to the protection of human dignity. Although it is debatable to what extent sexual behaviour in public may be legally regulated,the very idea of the police in the bedroom or indeed,in a private hotel room or any other place where people expect privacy for intimate expression rightly alarms us today,raising the spectre of fascist or totalitarian tyranny. Such regulations never formed part of Indian traditions,and they did not even have a secure home in Europe as a whole. France got rid of all restrictions on same-sex conduct early in the 20th century,and Germanys short-lived sodomy law (passed only in 1871),though strengthened by the Nazis,became a simple age-of-consent law in East Germany in 1957 and in West Germany in 1969. The special anxieties of Victorian Britain (shared by Puritan America) were foisted on India by the Raj,but even Britain got rid of such laws in 1967.
Third,we know by now that the very existence of such laws,even when they are rarely enforced,causes a number of problems for gay and lesbian citizens. For fear of being arrested,they are less likely to seek medical treatment for HIV/AIDS,thus impeding public health efforts. Stigmatised as lawbreakers,they are less likely to attain high political office. (Can an admitted felon be a judge? A legislator? A cabinet minister?) And,like Hardwick,they are more likely to be victims of violence. Gary David Comstocks exhaustive sociological study,Violence Against Lesbians and Gay Men (published in 1991,12 years before the US Supreme Court invalidated the remaining state-level sodomy laws),shows that a major cause of anti-gay violence is the perception that the police will not intervene on the side of the victim. Indeed,the police are often perpetrators: one anonymous policeman interviewed by Comstock said he had beaten up 17 gay men in one year alone. Toricks glee at putting Hardwick in an undignified position is not idiosyncratic.
The factual record is clear and overwhelming: sodomy laws are damaging both to individuals and to society. The legal issues are also clear: such laws invite individious discrimination and violate the right to life in accordance with human dignity.
One might add though this is a side-issue that such laws discourage visitors. What actors,sports stars,academics and many others will want to visit a country where such laws are not only on the books but have been recently reaffirmed? In working on my own universitys centre for collaborative research,due to open in Delhi in March 2014,I worry about how the situation may affect our scholarly activities. And if the answer should be that scholars from the University of Chicago are in no danger of being targeted under the laws,were then back to the issue of persecutorial implementation.
What comes next? Will India go down the same road as Russia and forbid the advocacy of same-sex acts? Surely not. But to say that is just to say that the entire spirit of Section 377 is un-Indian,and that India deserves its own laws,which truly express its spirit of inclusion,freedom,and toleration.
The writer is Ernst Freund distinguished service professor of law and ethics at the University of Chicago. She is the author of From Disgust to Humanity: Sexual Orientation and Constitutional Law