Homosexuality is still illegal in India


A few months ago I was involved in an exchange in a forum. The exchange started with something and I jumped in when a few started talking about homosexuality. We had the usual set of people, one side[1] arguing that “it’s not natural” and the other side saying “it’s been genetically proven, so it’s natural indeed”.

A lot of us have had these conversations before and I have been on both sides of the issue and now in a different dimension altogether; because both the parties have inherently prejudiced or rather insular views on the topic. While the former was explicitly biased (at least in my opinion) the other side, in retrospect, isn’t any better. Why does it have to be “genetically proven” or “natural” to “accept” homosexuality? Even if homosexuality is favored by certain social setups than others (as has been shown by a few studies) and a person turned in to a homosexual or a bi-sexual simply because of socialization, what’s wrong with it?[2]

There hasn’t been any observed, let alone proven, social malfeasance that is originated by proliferation of homosexual individuals or households in a geographic area (however large or small it is). On the contrary, because of ostracizing homosexuals AIDS and other STDs have been left unchecked in India[3].

None of this might be new to you, but what I’m going to point might surprise a few (may be not). In the heat of exchange, in the forum, I was about to say something like “The Indian law doesn’t seem to have a problem, what’s yours?” But for some reason I felt that it may not be true. I remember seeing news reports indicating that homosexual behaviour is illegal in India, and I found that it is. I ran through the wiki article on this and found the IPC article (Sec 377). This is what it says

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.
Given the rare indictment and rarer conviction it’s not surprising that this article is about 150 years old – completely untouched. This is one of the many articles that were retained from the ‘British Raj’. It’s interesting to see that Ambedkar let this one slide when he along with other “scholars” framed the Indian constitution. He sure seems to have had his prejudices, or to put it softly “he was a man of his times” in some regards.

Anyway, I was stunned by the loaded innuendos in the article with conspicuously biased and contemptuous tone – at least under a critical lens. I wanted to see if anyone had deconstructed it already and I found this article by Prof. Joseph,


This section raises interesting questions like what is 'natural'? What is the 'order of nature'? 'Nature' conceived by whom? And 'Order' perceived by whom? Even if one assumes that the 'order of nature' is penile-vaginal intercourse between a man and woman, Sec 377 remains ambiguous about which sexual acts it seeks to prescribe. For some reason, sodomy between males and male and female and bestiality has been considered 'carnal intercourse' against the order of nature. But there is no reported judgments of the High Courts or the Supreme Court declaring that cunnilingus or fellatio would consider an offence punishable under Sec. 377 of IPC.
And as she adds
Heterosexual couples engaged in sodomy can also be indicted under this section. Marriage is taken as an implied consent by the wife for 'normal' intercourse and not for anal intercourse. If the wife consented, both are guilty, if she did not, the husband alone is guilty. Under Sec. 13 of the Hindu Marriage Act, 1855 and Sec, 11 of Indian Divorce Act, 1869 a wife can apply for divorce if the husband has been guilty of sodomy/bestiality.
so anal sex is illegal too.

Not that I'm a great expert or a fan of these topics but I'm just wondering how unclear the IPC rule is (and who know how many articles are like this). As Joseph says, since there has been next to no case related to homosexuality in the past 50 odd years the wordings have gone unquestioned. Someday they will be and then we'll have an interesting debate in the court.

But as of now there's been little attention given to this topic in the blogosphere (Indian bloggers that is). Sure there are several posts that argue favouring "equal treatment" of homosexuals, but they hardly dissect the theoretical underpinnings. I think it's high time the self proclaimed liberals got in to discussing whether the binary classification of normal and abnormal is appropriate and get out of why something is normal or abnormal. There were few discussions in and few odd reports on this issue in NDTV; one of them mentioned that more human rights groups have become active in order to revise this article 377. But I don't care if they revise it or not because India is not run by the judicial system but the long nosed social system.



[1] This side uses several arguments including “animals don’t do it so it’s unnatural”.

Why are we even comparing animals and humans when the issue is more social than biological? Especially when animals themselves aren't composed of a set of species that conform to the same patterns of living.

First point: Few animals do it, others don't. So there's no way of classifying that no animals do it or all animals do it (whatever the 'it' is).
Second point: Social evolution is common for both animals and humans, only the degree varies. The same species in different geographical locations have different food and sexual practices (ex: cannibalism, inbreeding etc.). Genes and memes both, in various levels, play a role.

So the notion of nature isn't that definite when it concerns living beings. Check the section titled 'The natural and the artificial' in this page (if you are interested that is).

[2] Some of you might be enraged by this question. “What do you mean what’s wrong? It’s immoral” – if that’s your reaction, we should probably redefine morality. That aside, there’s no evidence to support the argument that homosexuals “destroy” the moral fabric of a society (whatever it means).

[3] There are no less than 70 million homosexuals in India – Stats India. It is suggested that at least 10% of Indian men have had sex with other men (MSMs) – NDTV report.

10 comments:

indianangel said...

Good Post! I appreciate your flair and style of writing - just as a suggestion,if you intend people to read your blog, then you should keep your verse and lyrics simple, for its more important to convey the context than exhibit your proficiency or profanity in writing! Keeping things short and simple - its always an added advantage! I was literally struggling to understand certain a few sections in your writing! a very nice post overall do keep writing! :)

Suresh said...

Hi Prasanna,

I maintain this blog mostly for my friends and myself, just for quick/cross references when we have a discussion. So I tend use a language that all of us are comfortable with (which is actually pretty plain and simple, just a few jargons here and there).
Of course it is also open for others to read, but I don't shorten the length or make it more "appealing" just so that many people will read it. This is no TV show in CNN, I don't intend to crush the news, roll it in to a ball, roast it and serve it "short and simple".
It works the other a way around, it's meant to deconstruct and dissect expressions and meanings that are largely taken for facts (except by a minority). In doing so I sometimes to tend to overdo it, become a little to wordy, but I think it's a side effect one has to put up with.
It isn't my intention to "exibit my proficiency" here, that's how I write. I make it deliberately simpler than my academic writings, but I again there's only so much dilution you can go for. About profanity, no, I haven't used any profanity in my post - while dick and pussy may be profane, penis and vagina are not (I use the latter in my papers). Besides, this blog is a bit "in your face", so it's a characteristic that it won't lose.
Thanks for your comment. Notwithstanding the kind of comment I left in your blog, you've been fairly nice to me (except for the condescension that my senses refuse not to smell). But hey I've returned the favour:p. Cheers

thinking girl said...

Hi Suresh,

interesting post.

do you know that homosexuality is illegal in many US states as well? here's a WIKI link:
Sodomoy Laws

I wish there wasn't such an emphasis on finding out why people are gay - whether it's genetic or social, etc. Homosexuality does occur in nature among all kinds of species as a social behaviour - which goes against Darwin's theory of evolution that suggests homosexuality is abnormal. Someone sent me this wonderful article on that subject: Gay Animal Kingdom

It would be nice if we could just accept homosexuality as part of the human condition and be done with it. Who cares why some people are straight, bi, or gay? I just don't understand why there is still such a big deal made about it.

thanks for including me in your blogroll!

Nilu said...

Good one..Would you want to fuck me ?

Suresh said...

@Nilu - No, thanks

Anonymous said...

Oh yeah, it is still illegal. Why do u think, I sitting here rather than there...just kidding.

It is truly maddening that people are ready to accept homosexuality if it is in the genes, like its some sorta disease and they accept the condition. People have to come out of this frame of mind - It is not a disease condition, or an abonoramlity. Accept it because it just is, no justifications, no reasons.

Q.

PS - cudn't resist addding my two cents.

Suresh said...

hey Q,

Yes, a lot of people do think it's a disease (well some think you have to live with it and others think it needs be cured). What's funny is that they use the term 'genetic mutation' to support their theory. Because 'mutation' only means something negative according to 'them'. Thanks for the comment, you had to say something for this post :).

Known Stranger said...

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why is this keeping posted in your posts ? does that have any significance while you speak a view ?

some time certain views need not be argued when those you feel are not worth to be discussed.

there is no point in explaining certain things to certain people.

who read the history of old civilisation of sindh, cauvery, ganges , pataliputram , kalinga with no biasing or pre notion ( i dont refer india still this name was not framed to the locality) people wont be able to digest their own history let us not go outside this territory - let some one when speaks or discuss about a subject - better they come forward - if they are speaking with norms of what followed or changed or what they feel from their point of view.

every thing is good every thing is bad - it is a respectiv term

The Individualist said...

*searched the entire post for profanity but to no avail.
Er never mind.
Refreshing topic. I had to jump into all those links and thereby, had a discourse given on Indian laws. It is highly annoying that we can openly practise such bigotry. And many laws that came under the Manusmriti seem contemptible now. Some probably were relevant in that age and in that society. Not anymore. Even if Nietzsche's comment was thrown in as a foot note for the article-
I have to mention here that in a recent induction programme at my workplace, we were asked if we found people 'living' with each other in the neighbourhood offensive. And hell! Would you believe it? Of around two hundred of us, a hundred and forty hands went up! What do you have to say to that?

Anonymous said...

Hey! Nice post! Yeah, so I'm a gay Tamil guy in his early 20's in Canada (born and raised). It's refreshing to see that there are some Tamil people out there who aren't freaked out by homosexuality (as if we're crawling with STDs). I am obviously still in the closet and no one knows. All I know is that one day, I'm going to have to come out and some over-exaggerated drama is going to happen in my family. But I think it's really difficult for South Asian guys to come out especially since not only am I going to be breaking the "arranged marriage" barrier, but also the fact that my future lover will be a man and most likely (but not necessarily) of a different race. Anyways, what I find very ironic is how India is so against homosexuality when we have many temples with depictions of gods having sex (even homosexual sex!). Yet no one ever brings up that argument....

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