Abolition of (Major Parts of) Section 377: A few observations and a rider

Though historically India has always had a place for homosexuals notwithstanding the view of the rest of the world, how does the political climate dictate the manner in which their presence is acknowledged?

Abolition of (Major Parts of) Section 377: A few observations and a rider

Just yesterday, the Supreme Court of India abolished parts of the draconian Section 377 of the Indian Penal Code (IPC), a British Colonial Era law provision that criminalised homosexuality and a few other sexual acts (like fellatio) which the section deemed “unnatural”. It is a welcome move, no doubt, on multiple accounts. First and foremost, the state’s reach should not extend up to its citizen’s bedroom, not least because that unwelcome reach takes little time to convert itself into overreach. It is simply incompatible with the notions of individual liberty and the sanctity of the individual’s privacy, values which are (theoretically) cherished in a democracy, and hence it should not have been there in the first place ever since India declared herself to be a democratic republic in 1950. Secondly, the same law provision was firmly rooted in a specific vein of Protestant Christian morality which got distilled at the time of Queen Victoria’s reign, the British Monarch who was at that time the Empress of India. Her rule, which oversaw the better part of the nineteenth century, came to be identified with that code of morality, and consequently the phrase ‘Victorian morality’ was coined. Traditionally, Christianity has vehemently condemned homosexuality as a sin against its God, and homosexuals as grave sinners. The Old Testament describes an episode in the Book of Genesis where the cities of Sodom and Gomorrah are cursed and overthrown by the God of the Bible because their inhabitants indulged in homosexuality and other ‘unnatural’ sexual acts. That is where the roots of the Victorian Morality – and consequently those of the religious-philosophical basis of Section 377 – lay.

Now, after seven decades and more of India declaring itself to be an independent and sovereign republic, it makes little sense that her penal code will continue to bear the traces of a colonial-era legal philosophy, especially in this case, as India had also been declared to be a secular republic back in 1976, during the Emergency. And of all things, a secular republic can ideally have no business judging the actions of its subjects by standards of morality set by some religion (and least by such religions which have no organic relationship with the Indian soil. That is to say, the religions which give rise to this morality are not autochthonous to the Indian Subcontinent region.) After all, a secular state should have secular laws, and not the ones which are rooted in religious dogma. Therefore, by scrapping this religiously motivated section of the IPC, the Indian republic has taken a step towards vindicating its claim of being a ‘secular’ state (however flawed on other accounts that attribute may be, such as for levying discriminatory rules against Hindu temples, festivals and institutions, selectively taxing and censoring them). 

The fact that the Supreme Court of India had struck down the Delhi High Court’s 2009 judgment decriminalising homosexuality back in 2013 shows that law provisions like the Section 377 have the potential of becoming a very case-specific illustration of the truism – “power corrupts and absolute power corrupts absolutely.” Therefore, citizens of a democracy, despite all its inherent drawbacks, need to have the possible guards against such tyrannical reach of the state in place. Or, at the least, we need to swiftly dismantle the already existing structures which enable any of the pillars of the state to exercise such high-handed overreach. This has been done today in the Supreme Court, but alas, not so swiftly.

Having said that, it must also be highlighted that the abolition of the most contentious parts of Section 377 should not, in any way, be construed as an endorsement of homosexuality (or any other specific sexual orientation for that matter), either by the state or by our society in this country. We need to add this rider to the process of decriminalising homosexuality right here, right now – at a moment when sections of the Indian society, as well as those outside it, are poised to celebrate the fate of Section 377 – because the champions of LGBTQ rights, in their own turn, have often overreached their limits, and the limits of human wits. Their activism-oriented politics started to be chiefly driven by resentment, which tilted their priorities from sexual freedom to spectacularity. The goal no longer remained just the attainment of freedom to choose a sexual partner, it was pushed further down the chaotic road to establish the homosexual / LGBTQ lifestyle as one of the uber-progressive lifestyles. The individual was then asked, encouraged and continually cheered on to emulate and multiply the increasingly queer form existence, because, what better way to show your solidarity with a given cause than to be in the shoes of those you seek to empathise with? This was the perverted logic, and it denied itself from seeing the flip side of the whole thing: a wilful emaciation of the male aspect of the society – the force that protects and punishes, even oppresses at times to maintain precious social order.

As a result of this arose a disoriented (disoriented because it became devoid of its purpose and meaning in the absence of its complementary other half) and wasted female aspect of the society – the force that nudges our spirit to look beyond the known and safe boundaries of order and into the unknown, which amounts to chaos when done in the excessive. And, as the culmination of all this, a gradual dissolution of the social order and civilisation took place, through rank decadence. It was a descent into hell, a spiralling downward movement into meaninglessness. Thus, in the process of empowering homosexuals to come out of their ever-intimidated and sorry existence in the West (where they had been witch-hunted even until that rather recent era; a well-known example being that of the mathematician Alan Turing) the LGBTQ-cum-postmodernist ideologues have often normalised homosexuality itself, even endorsed it in ways that betrays logic since mid-twentieth century. Of course, in doing so, they have received a fair amount of help from the postmodernists, as the latter created a theoretical façade to deconstruct logic and common sense themselves, saying these have been nothing but a convenient tool of the heteronormative patriarchy.

This paved the way for the LGBTQ activists to hit the broad road and take action where it mattered the most: the education system. Their fierce and bigoted ideologues, working in tandem with radical feminists and other postmodernist Neo-Marxists, infiltrated various ranks in the universities and started selling the notion that gender is a social construct with no grounding in human biology and psychology. The result, at least in the Western European and North American countries is too clearly visible to miss. The morale of the societies of those places is at an all-time low; utopian ideals such as multiculturalism and equality of outcome reign supreme over the minds of bright young people who get indoctrinated right from the very beginning of their academic career, and people seek a world where values are only relative, nothing is expressible or remain to be experienced in absolute terms, not even truth. All points of view and all ways of living life – savage or civilised, indulgent or restrained, materialistic or spiritual – are claimed to be equally valid. No hierarchies at all. None whatsoever. No wonder then that his state of affairs has been rightly seen as an opportunity by political, cultural and religious invaders, powered by the latest technologies and the newest sophistications of dissemination of information, to encroach upon the West and overwhelm its civilizational identity and inheritance. Similar things, although in a lesser scale – have been seen to be unfolding in India as here too the Trojan horse had entered the institutions that hold the key to getting at the very heart of the society: the academia and through it, the mass media.

The people living by the Ancient Indian traditions, i.e. the progenitors of the present-day living Indic communities of Hindus, Buddhists, Jains, and Sikhs have left us a valuable share of inheritance in the form of experience to learn from. These traditions have much to teach us in this regard – in giving us a proper orientation towards the question of sexuality. Much as the freedom of sexuality has become a voluminous, highly-publicised and spectacularised debate of our times. Indic communities have, from time immemorial, been dealing with this same question with a dignified stance of silently assigning the sexually ‘other’ individuals their share of the social responsibility (because you see, dharma – the key idea on which all these Indic communities were founded – is chiefly concerned with the responsibilities, and not with the rights, of individuals/groups). They must have grappled with the same situation, but instead of creating a din of spectacular outrage over it like our contemporaries have, they simply recognised the need of those ‘others’ and proceeded to assign them a specific social identity, and thus a social role to perform – a sort of office to run. There was oppression or seclusion involved. Śikhaṇḍī was as much a Kṣatriya as Arjuna himself was. Vṛhannalā enjoyed as much respect and influence in Virāṭa’s court as did the minister Kaṅka (Yudhiṣṭhira in disguise).

In this way, the question of a distinct identity of the individual and the larger group he or she or they might identify themselves with was taken care of. They were also given their due respect and dignity as a holder of an assigned office which no other individual or community would be able to usurp, ever. This was the way of the Ancients of our race, of the ‘Indian’ (or as once upon a time the foreigners identified us, the ‘Hindu’) race.

There is a thin but immensely significant demarcating line between enjoying liberty and being a libertine. The freedom to choose one’s sexual partner (and, as a corollary, one’s sexual orientation) should in no way give one the freedom to disrupt the social order – which has been a hard-earned delicate balance between the destructive and constructive forces of Being – that allows civilisations to flourish; in other words, that which helps savages and even beasts to become Man. One may hardly find an indictment or even a statement expressed in contempt against the homosexuals just because they are homosexuals in any extant piece of Ancient Indian literatures. That does not amount to saying that that same culture encouragedits adherents to explore the territories of homosexuality – no! Ancient India, that is to say, pre-colonial India (which is not simply the pre-British India, but rather the India of the pre-Islamic era) left the homosexual individuals and communities to themselves as far as their sexuality and lifestyle were concerned – not interfering with their sexual choices, not condemning / cursing / punishing them. What better way to harbour and express genuine respect for an individual’s privacy – not least for so private a matter as the choice of sexual partner? These individuals were never once forced to marry a person not of their choice or from the opposite sex as has often been the case in modern (i.e. post-colonial or post-advent-of-the-colonisers) India. The homosexual or sexually ‘other’ communities (like the kinnara-s, hijḍā-s, or, for some, the vṛhannalā-s) had and still do have their own share of social participatory roles. They had to – and still have to among many remnants of the truly Indic communities – perform their specified roles in sacred/profane· rituals (here it should be added that there is no clear demarcation between the sacred and the profane in an Indic context). Some rituals, like the birth rituals wherein it was mandatory that a new-born be duly recognised by people outside its family, remained incomplete until the child is seen and ‘blessed’ by the hijḍā-s. But nowhere in the vast territory of ancient and living Indic customs, practices and beliefs was it seen that one was being encouraged to take up the lifestyle of a hijḍā, nor was one ever asked to celebratethe fact that they belonged to a certain community. For what is there to celebrate in being a part of a community – of any community? It is not an achievement in itself – just as it is not a cause of shame or embarrassment.

The hijḍā-s, an Indic community made up of mainly eunuchs and transsexual individuals are a living community to this day. They have their hoary traditions, a traditional lifestyle which is very much entangled with the sacred and the spiritual; they even have gurus – a leader of the community and a guide to its members – who would typically be a dynamic personality and often a deeply spiritual one. They initiate new entrants and make them members of the community by offering them The Way of that community. By sharp contrast, LGBTQ is not a community in the true sense of the term. And yet everybody, starting from the layman to the media to even some learned members of the judiciary continue to categorise the whole collection of LGBTQ individuals – who come from disparate social, economic, religious, linguistic and ethnic backgrounds – as a community. But the fact remains that LGBTQ is no community – unlike the hijḍā-s of the Indian Subcontinent who actually live in and as a community. They have their own little communes, which, as we have discussed above, have their rules and codes of conduct to abide by, which literally makes the hijḍā-s a community. But nobody has till date been able to validate lesbians, gays, bisexuals or trans- individuals as a single, homogenous community. Even each of these different sexual orientations, taken separately and on their own, would be a mixed bag of disparate individuals coming from a variety of backgrounds. In fact, the individuals purported to be a member of the “LGBTQ community” can and do wear several other group-identities or community-identities like Hindu, Jain, Marathi, Bengali, a traditional medical-man, an academic, or even that of a “self-employed techie”, at the same being a lesbian/ gay/bisexual/transsexual/queer person.

Another equally illogical and blind imitation of foolish notions that originated/flourished/became fashionable as “progressive” in either Western Europe or North America is that of “Gay Pride”. This is postmodernist spectacularity and performativity at their worst: here the “pride” in question is displayed by marching down the streets with colourful banners and flashy outfits procured to create a shocking effect in the spectator. The message is clear: we’re here to shove our alternative sexuality down your throat. But why? Why would you want to force it on us as a sort of display on a mobile museum/art gallery? Is it not objectification of the highest order to hold oneself up as something of a spectacle, and that too by virtue of something as personal and private as one’s sexual orientation? There is nothing wrong or unnatural in being a lesbian/gay/bisexual/transsexual at least in the eyes of the Indic traditions, as much as there is nothing to be proud of being any of these. Unlike what has been already incorporated in the primary school-level textbooks of North American schools, we must take a stand for the truth that there is absolutely nothing for a gay person to be proud of himself solely on the account of him being a gay person. Just like everyone else, they have rights to live a dignified life and earn a respectable livelihood, as long as they fulfil their responsibilities as a social animal living in a specific cultural context. The very notion of seeking pride in one’s sexual orientation is a foolish one. This is what is required to be taught to our young ones. That way we ensure no one is trading civilisation or its social order held in place by dharma for unscientific, baseless notions of progressiveness. Let us not allow the uncoloured sat-dṛṣṭi, which helps us identify the truth, to be buried under the noise of celebrations and blindingly flashy colours prancing around the going of Section 377.                    

About Author: Sreejit Datta

Sreejit Datta teaches English and Cultural Studies at the Amrita Vishwa Vidyapeetham University in Mysore. Variously trained in comparative literature, Hindustani music and statistics; Sreejit happens to be an acclaimed vocalist who has been regularly performing across multiple Indian and non-Indian genres. He can be reached at: Email: sreejit.datta@gmail.com Blogs: https://medium.com/@SreejitDatta http://chadpur.blogspot.in/

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