*As of 6 September 2018, the section which criminalised certain forms of sex between consenting adults has been struck down by the Indian Supreme Court. You can read the full judgment here.*
12 November 2017 marked the celebration of the 10th Delhi Queer Pride festival, where thousands took to the streets to march, dance and – protest. No matter what country I am in, I always make it a point to support pride festivities. I’ve joined processions in Paris and Dublin which have grown to be huge events, usually with specially designed floats blaring music as is the case in Paris, or an entire community-activity day that takes place in Dublin. Both countries also have voted in same-sex marriage, which has been a significant development in the acceptance of LGBTQ relationships.
Although the march didn’t have the same structure as prior pride events, the ambiance was no less jubilant and the excitement infectious. People of all genders, classes and creeds came together in a blaze of rainbow colours, comradery and solidarity. The smog that had plagued Delhi for a number of days had somewhat lifted although smog masks were a regular accessory of some of the pride attendees. The event culminated in a show including poetry, singing and dancing from a wide spectrum of the LGBTQ community all centring around the themes of gay rights, self-expression and inclusivity.
It was heartening to see that a large group from Ashoka University had come to participate and show support. Some, such as Surya, had attended a pre-Pride poster-making session (they exist) and had come armed with a “Shashi Tharoor, Marry me” handmade poster. Shashi Tharoor, for those in the audience who live under a rock, is an Indian member of Parliament, writer and human rights’ activist, to name a few of his many ventures. Another YIF-er, Navya, graciously allowed me to represent her “Give me a Bi-Five” poster and so on we marched to the beat of the drums. Roads had been blocked off as the procession danced its way through the streets. A strong media presence lined the sides of the roads snapping photographs as we proceeded as well as bystanders and marchers alike stopping to take selfies with us. Surya, especially, for the uniqueness of his poster, attracted huge attention.
We all left with that Pride-filled fuzziness in our hearts and glitter on our faces. The next day, we woke up to realize that Surya and I had been featured as number 22 on Buzzfeed’s “30 Fearless, Hilarious and Gay AF Signs from the 10th Delhi Pride”. Surya’s poster was then picked up by an online magazine, the Gaylaxy, who had taken it upon themselves to tweet it to the poster’s namesake Shashi, who is an avid Twitter user. He replied and all of us figuratively and literally lost our shit.
At this point, Surya had not posted anything on his own social media. A chain reaction in the internet universe had conspired to deliver this to Shashi himself. Indian Express, Scoopwhoop, Socialstory, Mensxp and the Times Now also began covering the story and Surya was contacted by a number of radio stations, newspapers and PR companies asking for his comments. When I asked Surya why he had chosen Shashi for his pride poster, he said that he had wanted to avoid the usual protest language common of posters and instead embody gratitude and positivity towards LGBTQ allies. He had picked Shashi because of his continued efforts to represent the rights of the LGBTQ community in Parliament; most particularly, advocating for decriminalisation of Section 377 of the Indian Penal Code (and also, for his overall sex appeal, obviously). He had never imagined that he would find himself at the centre of a social media frenzy that had not even originated from his own accounts.
Surya deflected a great deal of the attention. He said that he was happy that his poster had raised awareness about the pride event, but that he would prefer if energies were channelled in to the central issue that casts a shadow over the progress of LGBTQ rights in India – that of Section 377.
What is Section 377?
Section 377 of the Indian Penal Code is yet another remnant of the British colonial legal system in India. With the heading of Unnatural offences, the section reads:
“Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine”
I know what you are thinking. How vague can you get? Let me deconstruct this for you.
“Against the order of nature” can be taken to mean any sexual act that does not involve penetrative sex of the penis in to the vagina. Not only does this criminalize sex between two consenting homosexual adults, it effectively criminalizes anal and oral sex between consenting heterosexual adults also. This law is not only archaic, discriminatory and ludicrous, it is also almost impossible to enforce, given that a couple would have to be caught red-handed in the act to be prosecuted. Big Brother, thankfully, does not have eyes and ears on the things that we do in our private homes (at least, not to our knowledge). The law has been challenged and was partially struck down in 2009 by the Delhi High Court in the Naz Foundation case, only for the Supreme Court to re-instate it on appeal, saying that it was a matter for the Parliament to legislate on rather than the judiciary. That the judiciary, as guardians of the Constitution and protectors of the fundamental rights of its citizens eventually concluded that making such a ruling would be outside of its power seems to be nothing but a cowardly cop out. Re-criminalization has been regarded by some as affirmation of anti-LGBTQ sentiment, with reports of an increase in violent attacks and discrimination against the LGBTQ community. The recent 2017 Supreme Court judgment in Puttaswamy, which acknowledges privacy as a fundamental right means that Section 377 should be revisited and deemed unconstitutional along this principle.
So what does it even mean?
Let us be clear, being gay is not a crime. Section 377 will only come in to play if you are caught red-handed in the act of having penetrative sex, be it oral or anal. The mere suspicion of it is not enough to warrant arrest. It is worthy to note that much of the case law focusses exclusively on some sort of penetrative sex between men and that sex between two consenting women seems to have been outside the ambit of the drafter’s imagination. So it seems that lesbians will get off scot-free. Unless sex toys are entered in to equation, then it gets opaquer. The catch-all clause of section 377 means that it is up to the whims of the judge to decide what acts he/she thinks are against the order of nature on any given day.
Is Section 377 an “Indian thing”?
There is nothing Indian about Section 377. It was conceived by the British. We have Lord Macaulay to thank for this beautifully vague definition which was conjured up so as not to encourage public discussion about such acts. The British themselves repealed a similar law in their own jurisdiction but section 377 has lingered on, like the post-colonial hangover that it is. India has made progress in LGBTQ rights with the recognition of a third gender, however, many recommendations made in the NALSA judgment, such as separate bathrooms and frisking zones in public areas have not been taken forward by Parliament. If anything, any progress made to provide protections to this highly marginalized community appear to now be scaled back.
Why do we care if prosecutions are rare?
Section 377 explicitly enshrines in law that certain forms of what we attribute as gay sex are not okay and therefore, that there is something about the nature and expression of homosexuality that is not okay. Although on the face of it, it is not an anti-LGBTQ law, it is consistently used to target this community. There are many documented accounts of gay couples found kissing or holding hands by police officers in public areas, who then threaten them with section 377, force them to pay bribes or demand sexual favours to let them go. I have also heard stories of people on social media apps such as Grindr targeting gay men to have sex, then mugging the person, leaving the victim without any recourse to report to the police because they had the intention of engaging in a what is considered an illegal activity. This section not only denies the right of LGBTQ couples to develop intimate relationships but simultaneously exposes them to threats, violence, extortion and bribery by those who prey upon the situation of anxiety and fear that the section creates. It further impacts their mental health, constitutes a grave infringement of privacy rights and prevents them from living with dignity and respect.
And so, the relevance of Shashi Tharoor.
The judiciary has already provided the groundwork for the decriminalization of Section 377, it is now time for Parliament to show courage and take up the mantle in support of gay rights. It is only then that the LGBTQ community will be able to live and love without the insidious fear that courts their current relationships both privately and in the public sphere.
I call for a complete de-criminalisation of Section 377 so that consensual sex between consenting adults, irrespective of their gender and sexuality is guaranteed, as is the dignity, privacy and equality of all before the law.
Shashi, in your hands, we entrust the continuous petitioning against Section 377.
In the meanwhile, we will continue to protest with Pride.
With special thanks to Surya Harikrishnan (Twitter @thesuryahk) and Kartikay Khetarpal