Last Word: The Love-Hate Laws

(This column was written for The Calcutta Telegraph, September 12, 2003.)

Until I went through the debates raised last week over whether the infamous criminal sodomy laws in the Indian Penal Code should be repealed, I had, like a good, well-brought up Indian woman should, taken the edifice of my marriage for granted.
My husband and I tied the knot about seven years ago. As practising heterosexuals, we took our right to stand up in public and affirm our commitment for granted; we did not, unfortunately, delve deeply enough into the laws governing marriage, or we might have opted out in disgust.
I mention this to avert a possible criticism from the government of India, which told justices of the Delhi High Court that the laws affected only a small minority of Indians—ie, gays and lesbians—and that “no one except those whose rights are directly affected by the law can raise the question of its constutionality". But we do not live in a police state, yet, and that every citizen of India is entitled to take part in a debate over the laws that govern us; and far from affecting what the government thinks of as a “small minority” and we see as a thriving gay and lesbian community, these laws affect everybody. This the state’s version of the Love Laws Arundhati Roy described that decree who is allowed to love whom and how much and when and why.
The government’s response concerned the potential repeal of Section 377 of the Indian Penal Code, which seeks to prosecute “whoever voluntarily has sex against the order of nature with any man, woman or animal”. The government’s legal representatives asserted that “Indian society by and large disapproves of homosexuality”. In more Biblical vein, they asserted that legalizing gay sex would "open the floodgates of delinquent behavior”.
Indian historical records show that homosexuals and lesbians existed centuries ago in this ancient land, and have gone through cycles of persecution combined with moderate tolerance then as now. What the government’s records do not indicate, but the wording of Section 377 does, is that the idea of sexual relations “against the order of nature” is a very Victorian, indeed, almost severely Puritanical concept. It certainly isn’t a concept to be enshrined in stone by a country that expects to call itself modern.
We should be ashamed that the debate over the acceptability of homosexual behaviour in India is at such an embryo stage. I’m not going to point out the obvious, which is that people fall in love and it’s ridiculous to criminalise them because they prefer their own gender to the opposite gender. I’m not going to go into detail over the fact that Delhi and Mumbai now have a thriving gay and lesbian “scene”, or belabour the point that society is becoming far more tolerant—witness the Gay Pride march in Calcutta recently. Gays and lesbians should be at a stage where, like their counterparts in the Western world, they’re looking for additional rights—the right to adopt children, to celebrate your union legally—rather than be struggling for the right to be what they are.
But what is the government doing in our bedrooms—gay, hetero, it doesn’t matter—in the first place? Section 377 is a law that can be used to prosecute any adult, even consenting, for indulging in oral or anal sex. What it indicates, though, is just how far a patriarchal state thinks it has the right to legislate our sexuality. Under the matrix of the present laws, a woman, by entering into marriage, implicitly consents to “normal”—ie, non-oral and non-anal—sex. This is the unstated but widely accepted principle that makes it difficult for women to file charges of marital rape, incidentally, but we’ll let that pass.
The point is that the Indian government, like the old regressive Judeo-Christian regimes, appears to believe that the only kind of sexual relations permissible between consenting (heterosexual!) adults, is sex for the purposes of procreation. If we understand this, it becomes easier to understand the government’s fierce reluctance to grant acceptance to the gay and lesbian community. To acknowledge that this community has a right to exist would force the state to dismantle its own notions of what a marriage is for, what love is about, and how to legislate the two.