Now that the Supreme Court has referred the curative petitions aimed at amending Section 377 of the Indian Penal Code to a five-judge Constitution bench, the gloom brought on by its 2013 decision to uphold the law has lifted a little. This mid-19th-century law criminalized sodomy and other acts that Victorians believed were "against the order of nature".
A simple way of testing the moral force of the arguments offered by supporters of this law is to ask if these arguments could be reasonably made by a gay citizen of the republic. It isn't hard to conceive of a contrite murderer or a contrite rapist recognizing the enormity of his crime and accepting the justness of his punishment, but it is impossible to imagine a penitent homosexual persuaded of the criminal error of his ways.
To defend the retention of Section 377, a homosexual would have to believe that he was deviant and that sex with another man was unnatural. If he believed both of these things, he would have two options open to him. He could either repent (if he was religious and believed homosexuality was sinful) or reform (if he believed that his orientation was a perverse choice). Which is to say, he could work diligently at turning himself into a heterosexual, failing which he would have to live a life of enforced celibacy.
Self-loathing and systematic repression are not demands that a constitutional democracy should make of its adult citizens. The Supreme Court bench that nullified the Delhi High Court judgment decriminalizing sodomy, distinguished between criminalizing homosexuals and criminalizing sexual acts "against the order of nature". It argued that Section 377 did not discriminate against homosexuality itself, it merely outlawed unnatural acts: sodomy of all kinds, heterosexual and homosexual, was impartially banned.
This is a very fine distinction indeed, because the entire burden of the law falls upon homosexuals and transgender people. The bench seemed to have a partial answer to this argument; it suggested that sexual minorities made up a vanishingly small percentage of the general population, that the law was seldom used to prosecute homosexuals and therefore Section 377 did not affect a significant number of citizens.
The court is clearly mistaken in its belief that sexual minorities make up a minuscule, statistically insignificant part of the population. It is, I believe, also wrong to suggest that Section 377 does not discriminate against gay and transgender citizens in an unconstitutional way. Not only does it do this, it does so cruelly and maliciously. It deprives sexual minorities of the right to loving, sexually fulfilled relationships by dehumanizing them. If sodomy is unnatural, it follows that gay men are perverts. Laws that turn specified categories of citizens into monsters for engaging in adult, consensual sex should not be on the statute books of a civilized republic.
It is essential to contest the court's sanitizing distinction between punishing the homosexual act and punishing homosexuals because stigmatizing the act stigmatizes sexual orientation. Homosexuals, kothis, hijras - anyone associated with anal sex lives under the constant threat of criminal prosecution. This gives others, the police amongst them, leverage for blackmail, extortion, harassment, even rape. Some years ago, I interviewed a large group of kothis in Bangalore and every person in the group had stories to tell about predatory policemen and routine violence. But the best (or worst) example of the dehumanizing power of laws like Section 377 comes from outside India and it concerns the tragic end of Alan Turing.
Alan Turing helped Great Britain win World War II by cracking Germany's Enigma codes. He is also widely regarded as the father of theoretical computer science. After the war, Turing was prosecuted in 1952 when it emerged that he was in a sexual relationship with a young man. Charged and convicted of "gross indecency" under Section 11 of the Criminal Law Amendment Act of 1885 - Great Britain's answer to Section 377 - this extraordinary man, a war hero and a scientific pioneer, was offered a choice between imprisonment and chemical castration. He chose chemical castration. He was injected with oestrogen to curb his libido. The 'treatment' made him impotent and increased the size of his breasts. In 1954, he was found dead. The coroner's verdict was suicide by cyanide poisoning.
Turing's story is well known, but the details of his tragic end are worth rehearsing if only to spell out the grotesque logic of laws like Section 377. This patriot and genius was clinically turned into a eunuch by the State he had served with such distinction, and driven to suicide. He was punished for forbidden sex by being de-sexed, neutered. This institutional savagery was only possible because his sexual identity - suddenly the only identity that mattered to the State - made him so monstrous that his taking a lover amounted to "gross indecency".
To restore a law like this, as the Supreme Court did in 2013 (when it overturned a high court judgment that had decriminalized homosexual acts between consenting adults), is to make outlaws of homosexuals and transgender people and leave them open to savage punishment: prison terms ranging from ten years to life. To suggest, as the court did, that any change to the law ought to be brought about by legislative amendments, not judicial verdicts, is to condemn sexual minorities to decades of harassment and discrimination. The utter disinterest of Parliament in this matter became clear when a private member's bill introduced by Shashi Tharoor to amend Section 377 was summarily rejected in its first reading.
Fortunately for us, India is a constitutional republic. A conservative parliament isn't an insurmountable obstacle to progressive change because the Supreme Court has the power to strike down laws that it considers unconstitutional. Section 377 rules that "[w]hoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life". It treats sex between men and animals, sex between two men and fellatio as equivalently 'unnatural'. Its absurdness should render it unconstitutional. A hundred and fifty years ago, the sexual repressions, anxieties and hypocrisies of Victorian men were distilled into a colonial statute. It is past time that the Supreme Court ruled that the derangements of dead men will no longer torment the free citizens of a great republic.
