Shockingly, some of India’s laws are archaic and out of sync with modern times. Section 377 of the Indian Penal Code, which criminalizes consensual sex between two adult men or women, dates back to 1860, and is a classic example of how legislation has not kept pace with an evolving society. The British — who had colonized India then, and steeped as they were in prudish Victorian morality — introduced this law.
Although the High Court of Delhi declared Section 377 unconstitutional in 2009, this verdict was turned down by the Supreme Court in 2013 — much to angst of lesbians, gays, bisexuals and transgenders, who are collectively known as the LGBT community.
But on February 2 2016, the LGBT saw a ray of hope, however faint, when the Supreme Court — in response to a curative petition — ruled that the issue of decriminalizing physical relations between two consenting adults who may be from the same sex involved a larger constitutional question and must, therefore, be examined by a bigger, five-member judicial bench.
This decision was hailed by the LGBT, which has for decades been humiliated and harassed by cops and even by the community — which saw sex between two men or two women as contrary to the order of nature.
Even ministers and bureaucrats — who one would imagine to be educated and enlightened — had rubbished this form of sexual intimacy. One of them called homosexuality a disease. A godman, Baba Ramdev, said with brazen confidence that yoga could cure the “unnatural attraction” one man has for another man or one woman for another woman.
Apart from some Hindus, some Christians and Muslims too shared this ridiculous view. When the Supreme Court was hearing the petition to decriminalize this form of sex, the All-Indian Muslim Personal Law Board and the churches of northern India said they would oppose any move to legitimize physical relations between two men or women — even if they were consenting adults.
This battle against Section 377 has been a long and weary one for gay activists. They have been saying again and again that sexual preference is a matter of personal choice, and attraction between members of the same sex does not make it unnatural or, least of all, criminal.
And the debate over homosexuality or the rights of transgenders has come under sharper focus in recent years with a growing clash between a rapidly modernizing young population and the staid, conservative older generation.
Ironically, while Britain itself has ceased to look at homosexuality as a form of physical aberration — and so too many other countries which have even begun to allow same sex marriage — India has remained stuck in a time warp.
Actually, India got pushed into this groove only in mid-19th century with the colonizing Englishmen enforcing their own views and thoughts on the hapless Indians through legislation. Section 377 is one horrible example which refuses to go away.
Philosopher Vatsyayan had spoken in his ancient Hindu treatise, Kamasutra, about lesbians, gays and bisexuals. Some ancient Hindu temples have stone sculptures which show man copulating with man or woman being sexually intimate with another woman. Somewhere, sexual liberalism appears to have taken a U-turn in India, and regressively so.
Shashi Tharoor, once a United Nations diplomat and Congress Party minister in New Delhi, and now a member of parliament, while averring that the issue “is not about sex at all, it is about constitutional freedom (which guarantees the right to make personal choices)”, believes that the opposition to homosexuality “stems from a place of bigotry, intolerance and prejudice. On the basis of caste, religion, language, appearance, ethnicities, skin colour, accent, you never know what some people can be petty about, in this case it happens to be about people’s gender orientations,” he adds.
Tharoor has always been a vociferous opponent of Section 377, and had even tried introducing a private member’s bill to amend or abolish this Act.
Director Hansal Mehta — whose latest movie, Aligarh, deals with the frustration and loneliness of an ageing university professor grappling with societal indifference and hostility towards his homosexuality — is, like Tharoor, a powerful voice against the criminalization of consensual sex among members of the LGBT group.
Many years ago in 1994, Tomas Gutierrez Alea and Juan Carlos Tabio helmed Strawberry and Chocolate. The story is set in Havana in 1979, and examines with marvellous finesse and sensitivity the agony of a young gay artist who is unhappy with Fidel Castro regime’s attitude towards the LGBT.
Strawberry and Chocolate is one of the most gripping works on homosexuality that I have seen till now, and it convinced me that it was as natural for a gay man to be attracted towards another man as it was for a heterosexual guy to find his pulse pounding at the sight of a pretty damsel.
The moot point now is, will the Indian judiciary lead the way towards an eventual abolishment of Section 377 by parliament.
Gautaman Bhaskaran is an author, commentator and movie critic, who has worked with The Statesman in Kolkata and The Hindu in Chennai for 35 years. He now writes for the Hindustan Times, the Gulf Times and The Seoul Times.