Is 377 now 404?

I’ve been going slow on blogging for a while. Yesterday’s news of the Delhi High Court’s ruling on Section 377 of the IPC is the biggest civil-rights news in India that I can remember: perhaps the biggest since untouchability was abolished. Just like untouchability, homophobia will persist in our society, but apparently it is no longer blessed by the law. But given the complexity of the situation, I wanted to spend some time absorbing the news before blogging. It is now over 24 hours and I’m not sure I’m much the wiser.

There is no ambiguity in the Delhi High Court’s ruling: it is clear, and it is common sense. Outlawing consensual homosexual acts among adults is clearly discriminatory and violative of fundamental rights. (One should note that 377 does not outlaw gay sex specifically, but “carnal intercourse against the order of nature”, which could be interpreted to mean anything. For example, it could outlaw any form of sex other than penile-vaginal penetration; on the other hand, given that homosexual behaviour is widespread in the natural world, one could argue that gay sex is not “against the order of nature” and not outlawed. But any interpretation of article 377 as outlawing consensual adult gay sex has been struck down, rightly, by the court.)

What I was wondering was, is this the end of the story? First of all, does the Delhi High Court’s writ run across India? I am not a lawyer, but from what I gather on the net, the answer is yes — unless the Supreme Court overrules it, which they would consider doing only if the Union Government challenges the HC ruling. But what if another High Court upholds 377? One assumes that the SC will then have to step in.

And what if the SC does step in? I am not pessimistic: after the Delhi High Court originally dismissed the Naz Foundation’s petition in 2004, on the grounds that it was not of public interest, it was the Supreme Court that asked the HC to reconsider the case. I think it is not likely that the SC will rule differently, if asked to do so. Articles 21, 14 and 15 of the Constitution, cited by the High Court, surely overrule any colonial-era laws that have lingered on in our books.

Our religious leaders are, predictably, having fits — this is one issue that unites all religions and religious leaders. Some, like the Catholic Bishops Conference of India, are relatively temperate in their response, saying they are “not opposed to” decriminalising homosexuality. One must be grateful for small mercies.

What is most amusing is this harping on “Indian culture” (a phrase used by nearly all religious leaders): our epics feature such stories as Vishnu turning himself into a woman to seduce Shiva, while the law in question is a legacy of the British and represents Victorian English culture (the same culture that imprisoned Oscar Wilde), not Indian culture at all.

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1 Comment

  1. You are one of the few who mentioned "untouchables" in this context. Many people still don't seem to get the bigger point: this is not about changing the sexual mores but about addressing inequality.

    Reply

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