Thursday, July 2, 2009

Section 377 bites the dust…. Or does it?

The biggest news of the day, and one that is likely to cause a lot of controversy and lead to a lot of repercussions, is the one about section 377 of the Indian Penal Code. The Delhi High Court has just scrapped the section, and declared it unconstitutional, and already I am inundated by phone calls from enthusiastic members of my coterie gushing congratulations.

It’s huge! It is certainly something I hadn’t expected to see in my lifetime. Born and brought up in India, I am well aware of how slowly attitudes really change here, especially about anything to do with sex. And let us not forget, 377 is completely about sex! I am sure by now that most people who have read the newspapers today have at least a vagueish idea of what the law is about. But just in case you don’t, here’s what it says. Whosoever shall have carnal intercourse “Against The Course Of Nature” shall be liable to a hefty fine or a life imprisonment term!!! Bravo say the hardliners and most mainstream straight people. They call it the “gay” law. What most people fail to see is that 377 applies to straight, even married, people as much as it does to gay men and lesbian women.

How!!! I hear shocked cries! How does the Gay Law apply to me and my spouse? Well it’s simple. Section 377 includes, in its list of unnatural carnal acts, such common heterosexual activity as anal and oral sex, even if it is in a consensual adult relationship or a marriage. As far as I am concerned that’s an invasion of my privacy and my rights in the worst way. What I do with my partner, with their consent, in the privacy of my home and my bed, is none of anyone else’s business, least of all of the state! The government has no right to try to regulate, or interfere in, my personal and consensual sex life!!!!

And punishable by life imprisonment?????? In this country where a rapist gets a maximum of seven years Rigorous Imprisonment (hardly ever awarded to the full), and where there are no laws protecting children from sexual abuse, a perfectly normal, common sexual act, performed by two consenting adults is punishable by a far worse than the perpetrator of such a violent and heinous crime as rape or child molestation???? That seems extremely extreme to me, to say the least! And, as the Delhi High Court rightly pointed out, it is completely unconstitutional. No only does the government have absolutely no right to poke its long nose into a person’s marital bed, it also has no right to single out a particular community and say you have no right to fall in love or express it.

Where the criminally insane, criminals, rapists, murderers, and every other kind of person has the right to love, express and live with whom they choose, how can the government of a so-called democratic nation say to a sizeable minority of its population….”thou shalt not love”? Had this same been said about Muslims, Christians, Jains, Dalits, or any other kind of minority or marginalized segment, anyone can easily imagine the kind of furor it would have caused. Yet when it comes to the LGBT community, everyone shuts up and pretends its ok. We are even willing to tolerate a law that implicitly and explicitly humiliates US, as 377 does, because it is never, in practice, used against us, and always used against “gays” whom we love to hate anyway.

That’s hardly the reaction of thinking, rational, open minded individuals. This kind of knee jerk reaction smacks more of bigotry, narrow minds, something more suited to medieval societies in the far flung wildernesses of the world rather than a wannabe-first-world nation in the 21st century aching to join the ranks of the global giants. Moreover, the issue to me is quite separate from your own identity. Whether you are gay or straight, whether you agree, comprehend and understand homosexuality or not, whether you think “they” are normal or abnormal, whether you think “they” are natural or unnatural, whatever your personal relation to the issue, the one thing we shouldn’t forget is that this is about INDIVIDUAL rights, above anything else.

As an educated modern Hindu, for example, if you don’t understand or know much about Islam or Christianity, would you demand that all Muslims or all Christians are prevented from finding a partner or expressing their love? As a modern, rational Tamilian, to take a random example, would you demand an embargo on the love lives of all those Bengalis, Marathis, or Punjabis that you don’t understand, and may not like? No self respecting, educated, modern, secular, democratic Indian will answer with a yes to these questions. So why does the same not apply to the LGBT community?
As for me I truly don’t give a damn what your colour, religion, orientation, beliefs, caste, class, blah blah blah, EVERYONE must have the same rights in this country if we have to call ourselves modern, enlightened, democratic, and ready to join the global community. So, in my opinion, this decision, regardless of what happens tomorrow, and what may or may not come of it, is a step in the right direction. There’s much to be done yet, and while activists, community and sympathizers alike take a break from the struggle to celebrate this historical event, lets not lose sight of the problems ahead, and let’s keep things in perspective.

There WILL be backlash from the orthodox, bigoted, fanatical elements. And this time it will be worse because it will come from every single religious community. Legally the LGBT community can no longer be chucked in jail for loving each other. However, in a country where a huge number of “chuckings in jail” are illegal and off the books, what real protection does this give the person on the street from sadistic and virulently homophobic cops?
There cannot be legal prosecution anymore (unless the decision is reversed by the Supreme court on the basis of one of the many appeals that will be filed sooner than you can say what the… and unless the Congress led UPA government pulls another “Shah Banu” and disregards the judgment of the court…just like that… under pressure from religious leaders. Remember that in that much talked about case it was only a section of the orthodox Muslim religious leadership that succeeded in making the government overturn the decision of the APEX court! How much worse will it be now that all the bigots of all colours will find common ground, a common enemy?). But, realistically, that does not mean that the community has equal rights in terms of marriage or legal “common law” partnerships, or that one can take the rights of ones gay relationship and ones partner as “for granted” as the mainstream heterosexual does. This does not mean one can make out on Bandstand, cuddle in a public park, or take one’s same sex partner home or to a party at one’s relatives.

Not unless attitudes to the LGBT community and to alternative lifestyles changes, in general society. And that’s not likely to happen in a hurry. The way I see it, this is the time to launch a new campaign. A campaign of sensitization, outreach, dialogue and education. Something that aims seriously at making a change at the roots, where it will really make a difference. Until then, KUDOS to the Indian judiciary for showing true maturity and responsibility. And a big “YAAAAAAAY!!!!” to all the brothers and sisters of the struggle! More power y’all!

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