Sex in the courtroom

First published in DNA, 21 December 2013.

A politician is exposed using State surveillance to allegedly woo his love interest. An editor tells a reporter his daughter’s age that the easiest way for her to keep her job would be to have sex with him. A godman and his son are both arrested for sexual assault and rape. A riot in Muzaffarnagar over false rumours of inter-religious ‘eve teasing’ left 48 dead and 15,000 homeless. The debate on rape, consent, gender relations sparked by December 16, 2012 continued throughout 2013. And by the end of it the Indian Supreme Court decided that the Indian Constitution’s letter and spirit were not being violated by criminalising consenting adults for having sex, in case the sex happened to be anything other than peno-vaginal.

India 2013 is like a pubescent 13 year old realising there’s something about the body that the mind needs to grapple with. There’s something about power, pleasure, social mores, class, law and so on, that comes together in the body and negotiates its way through bodily desire. There’s a sexual churning out there, and it’s not as titillating as the annual sex surveys news magazines do, nor is it as literary and profound as the language an incarcerated editor wields.

The churning out there is saddening and hilarious at the same time, but above all it is banal. If you want to see what I mean, read through notes of the Supreme Court’s hearing in the 377 case prepared by the Alternative Law Forum, Bangalore. Available online, these notes give more than a moment of reflection about India’s problem with sex. “We never used to discuss this,” Justice SJ Mukhopadhyay said at one point in the 377 hearings, referring to sex. “Now we are openly discussing it in court.”

The court was bound to discuss sex in detail because the law it ended up restoring is rather too specific despite being vague. Despite using vague terms like “against the order of nature”, Section 377 basically outlaws non-missionary sex, for the purpose of saving the world from anal sex. One petitioner, Purushothaman Mulloli, whose NGO JACK India believes AIDS does not exist, even complained that the Delhi High Court’s decriminalisation of gay sex was making too many people talk about the existence of gay sex. Even my friend’s grandson is asking me, he complained. What do I tell him? One of the judges replied it was great that children these days were aware of the Indian Penal Code!

Sometimes the courtroom felt less prudish and more giggly like a bunch of schoolchildren. Talking about non-missionary sex, one lawyer said, “We have material from the Kama Sutra but you may not want us to submit that.” This was met with laughter in the court. Justice Singhvi replied, “We don’t mind it.” This was met with more laughter. Justice Mukhopadhaya explained: “When pathologists go for tests, they don’t mind what they are testing.”

Like pathologists testing a body, the courtroom discussed “carnal intercourse against the order of nature”. What was carnal intercourse? Why does the law use the word carnal and not sexual? What is against the order of nature? What is nature? Is there a legal definition of these terms, and not just a dictionary definition? Fali Nariman, representing a group of parents of LGBT persons, explained that Macaulay deliberately chose vague language in this section. Nariman quoted Macaulay as saying that he was “unwilling to insert, either in the text or in the notes, anything which could give rise to public discussion on this revolting subject.” Any benefits that might arise from a more precise wording, Macaulay said, would be far outweighed by “the injury which would be done to the morals of the community by such discussion.”

Getting rid of the England of Queen Victoria from our minds and groins is not going to be easy, but despite a bad judgment, that the Supreme Court of India is discussing it, and making politicians take a stand on it, is a start.

Justice Singhvi remarked in one hearing that homosexuality may or may not be abnormal. “We can’t say, only persons with experience could say so,” he said. This remark resulted in laughter in the court. As the Supreme Court gets a chance to correct its bad judgment, one hopes it will realises that a lot of Indians do have experience of homosexuality from before and after 1860 and that they don’t find it abnormal.

The invisibility of the LGBT community has been used against it in keeping it criminalised. In one hearing, Justice Singhvi asked a government lawyer, “Do you know any person who is homosexual?” The lawyer replied, “I must confess my ignorance about modern society.” On another occasion, after reading a note by a gay man’s mother, Justice Singhvi remarked that he had “never met a gay person,” and said that he had learned a lot during these hearings.

In one hearing, the bench remarked: “The number of homosexuals in America are… one third of the population is gay. And the number is rising. Fortunately the number as per NACO is only 22 lakhs in India.” The word ‘fortunately’ there betrayed homophobia.

When given a list of well known LGBT persons, Justice Singhvi said, “But for this list we would not have known that Vikram Seth was homosexual. I enjoy his work but did not realise he was of different orientation. Ismail Merchant, nobody would know about.” But he wondered why there were no people from the legal fraternity, at which lawyer Anand Grover pointed out names of Justice Kirby and Justice Cameron.

This sense of shock and scandal over the existence of homosexuality was overcome by India with the Delhi High Court judgment. In response to that judgment, there was very little anger. How many anti-LGBT protests do you remember? The Supreme Court judgment has only helped bring about a greater public acceptance that criminalisation of consensual sex is wrong. Ironically, it helps India grow up in its sexual attitudes.

“It is male-to-male that is causing all the harm. Lesbians only end up in suicide.”

Bharatendu Prakash Singhal was a Hindutva ideologue, a retired IPS officer and a former BJP Rajya Sabha MP. On a Sunday afternoon in 2009, I visited him to discuss his opposition to the decriminalization of gay sex by the Delhi High Court. He was preparing to appeal against it in the Supreme Court.

Singhal, brother of VHP leader Ashok Singhal, passed away in 2012. A shorter version of this interview had appeared in Open magazine.

Photo credit: Salman Usmani

So the judgement has not come in your favour.
What can you do when the judge does not even taken notice of what you have put forth as evidence? There is just one paragraph in connection with the averments made by us. There is massive propaganda from the other side, that they are being harassed under 377. In my 35 years in the IPS I saw not a single case registered under 377 and no case of police harassment.

If it is not used what’s the point in having it?
It is a paper tiger. It inhibits people from freely becoming homosexuals.

But what’s the point of having a law that is not to be implemented?
For implementation of any criminal law you need a complainant and a witness. Sodomy is being conducted in closed rooms and neither party will complain because it’s a mutual consent matter.

That is precisely what the High Court order applies to – consensual homosexual activity. What is the problem?
Now male-sex-male…

Or female with female?
No, we’re talking of male sex with male. 377 does not refer to lesbians or eunuchs.

Because it specifies that penetration has to take place.
Yes. They included eunuchs and all to give it the shape of a cause. This is fraud.

From your point of you only male-to-male is to be criminalised, lesbians are fine?
It is male-to-male that is causing all the harm. Lesbians only end up in suicide. Male-to-male breeds diseases. Female-to-female are harming themselves only. When lust takes over, men pick up boys, threaten them not to go to the police.

But if that’s been happening despite 377, so what good is the law?
It’s a paper tiger. 35 cases came to the courts in 140 years under IPC 377. It was not hurting anyone.

Another argument is that people who are gays feel that their desire, their very existence is being criminalised. Why? You don’t have to endorse it, but why do you to call it crime?
I have an urge to steal your motorcycle. Why should my desire be criminalised?

But in this case it’s consensual, it’s more like the lending of a motorcycle!
What about adultery – consenting adults? The whole question is that of morality in society, of social morals. That is the casualty.

The judgement recognises this, but quoting Ambedkar, it says laws cannot be governed by public morality. They are governed by Constitutional morality.
If the Constitution is lacking in enforcing public morality then there is something wrong with it or its interpretation. The Constitution prescribes not just fundamental rights but also duties. (Digs out his copy of the Constitution and reads.) Fundamental duties say, “Follow the noble ideas of our national struggle… to value and preserve the rich heritage of our composite culture!” In this comes our public morality!

The high court judgement quotes Nehru as saying we are a nation that is inclusive.
Then we should not bother about arresting dacoits either. We should be inclusive.

Isn’t there a problem in equating homosexuality with dacoity?
Why? Homosexuals have also been transcending the law. How can you differentiate between the violation of one law and another?

In this case they’re saying the law is wrong.
That’s what they think, but so long as the law was there they had no business in indulging in it, but they were.

That’s why they challenged the law in court.
But all this while they’ve been violating a law equal to theft and dacoity! They talk of consenting adults, why should gambling be an offence? Five-seven consenting adults playing, what is wrong with it? What’s wrong with Sati, as a devout wife if someone wants to commit it?

But the argument about Sati is that public pressure forces the widow into Sati.
That is murder. (Narrates an example of a woman in Sitapur prevented from committing Sati, and the husband’s body didn’t burn completely despite a lot of effort.) She was not being forced and yet committed Sati.

Do you want Sati legalised?
I think it should be anybody’s freedom just like you want the right to sodomy! What suits you is okay…

You mean if Sati is legalised you will support consenting homosexual activity?
No! Sati was a crime because people were forcing widows to sit on the pyre. That is murder, not Sati. The rich heritage of our composite culture has to be taken care of…

That is fundamental duties in the Constitution, can’t be legally enforced unlike fundamental rights.
It is not possible to prove a negative thing in court.

Talking of heritage, scholar named Devdutt Patnaik has written about the presence of homosexuality and a broad-minded view of gender in ancient times.
Nobody denies it. But there was nothing loose about the morals.

According to one story he quotes, Shiva bathes in the Yamuna and becomes a gopi just to be able to dance with Krishna.
So what? Where is the immorality about it? When no other man is permitted there Shiva converts!

He says according to one’s karma one could be born as a man with a woman’s heart ot vice-versa.
I can’t understand this. Let’s focus on 377.

I’m talking of culture and heritage. The UK Hindu Council’s general secretary Anil Bhanot has welcomed the judgement and has said that Hindu scriptures describe the homosexual condition as a biological one and although they give parents advice on how to avoid a homosexual child during insemination, they do not condemn such children as unnatural.
In Manusmriti punishment was described for homosexuality…

Mild punishment.
Punishment was punishment even if it was to stand in the sun for a few hours.

Certainly not ten years in jail.
Those were ancient times.

Queer rights activist Ashok Row Kavi wrote a letter to the then RSS chief KS Sudarshan when the film Fire was being attacked. He wrote in the letter that LGBT communities have always existed in India since he time of the Vedas and the Puranas, and says that Hindu mythlogy regonises ten different male genders alone. He said Hindu religion has been more sophisticated on the question of gender than Western culture. He says 377 comes from St. James’ Bible!
When Manu has prescribed a punishment ages ago, you can’t play fraud by saying it’s Victorian. Progress is defined by the spiritual evolution one gains on the planet. Progress is not measured in terms of money or physical pleasure.

There’s this book, Same Sex Love in India, which says same-sex love has flourished in India since ancient times.
Aberrations can’t be quoted as flourishing. There was a survey by Wikipedia in 2004 of 44 countries asking if they would like this to be an offence. 83% in India opposed it! So that is our culture.

But recently, on the eve of the pride parade in Delhi, a newspaper survey said 51% people have no problem with homosexuals.
Neither do I! I don’t have any problem with homosexuals. Do you? Homosexuality has existed since the beginning of time, doesn’t mean it’s a healthy thing. The Center of Disease Control in the US has done a study on how homosexuality breeds diseases. Besides it’s completely unnatural. The anus is designed only for exit of things. It is not for entry. Therefore the mucus membrane of the anus is soft and can be torn with the slightest of rough material. Whereas the vaginal mucus membrane is tough. If it was natural the anal mucus membrane would have been equally tough. Secondly, when a woman is desirous of sex, the entire vaginal canal is irrigated by a very slimy fluid to make coitus pleasurable and easy. No such lubrication takes place in the anus.

Why is why gays use lubricants.
Yeah! Artificial lubricants! They’re doing an artificial job! You can’t call it natural.

Okay may be it’s unnatural.
That is all that our fight is.

But lots of things are unnatural. Like we’re not born with clothes but we wear them.
Why is obscenity a crime? It provokes. A nude woman will provoke so many boys on the street. It hits our culture.

But if people are doing it in private?
They were doing it in private already, who was stopping them?

377’s fear, guilt, criminality, harassment by the police.
That is all bogus and imaginary. I asked them, please give examples. They said there were any number of cased but the only example they ever had was the Lucknow example. I will tell you what happened in Lucknow. When the police raided this place in Lucknow, they were boys and boys, and they were supposed to be doing HIV-AIDS work, teaching them condom and all that sort of thing. The recovery memo shows video cassettes, explicit sodomy taking place, provoking them. There were all things that were promoting homosexuality. No condom was found, it was a gay orgy.  (Tries to find the Lucknow memo in his papers, instead hands over an internet printout of something else.) See, in America they do detailed study, unlike India. Risky behaviour, promiscuity, low life-span… You can say what’s the problem if they are reducing their life span but they’re infecting others.

But WHO, UNAIDS have all welcomed the high court order…
Remember this, USA controls WHO and has millions of dollars at stake in promoting this.

This document that you have given me for instance, from nationalmorality.com, has a lot to say about the Bible and family values. Seems to be coming from Christian evangelist propaganda.
And what you have given me is coming from gay propaganda!

Unprotected sex can spread AIDS amongst gay and straight alike. The argument is that decriminalising homosexuality helps NGOs like Naz work with homosexuals on safe sex.
The Lucknow case is a classic case where they were caught red-handed. There was not a whiff of AIDS control. Only pornography. Why do they need it for AIDS control. They were running a brothel. Which is still an offence, you may remove 377 but running a brothel is still an offence.

Sir somebody who says he’s gay and desires sex only with a man, is not attracted to women. What will you say to such a person?
What will you say to a person who says he wants to have sex with only a dog. They will say this is absurd, there’s no connection. Why not? It’s a question of physical attraction too. The moment you start talking of love it’s disgusting! You can say it’s a question of lust and I want to satisfy it. That’s okay.

There is indeed lust, and there are people who want to satisfy it with only their own sex.

They have been having it.

But you are against it.
No, not at all!

So what are you against?
I am against that anything be done openly which promotes and provokes others to follow it.

But if anything is obscene it’s illegal anyway.
Did you see the kind of obscene actions they did during the parade here? Did the police take any action?

Yours is a nuanced position.
I feel homosexuality is a crime against humanity. You may punish it or not. That is why it carries a strong stigma in society.

But if you are against homosexuality then don’t you want the loopholes in 377 done away with and prosecutions to go up and reduce the incidence of homosexuality in society?
No! There are so many things the government has to do. This is something society has to take care of. That is why there’s a stigma about homosexuals. (In a TV studio) one of the activists told me sir, when I walk on the street people call me (pauses to think) the Hindi word for catamite. He said they abuse me. I said if you indulge in it why do you consider it an abuse. You should wear it as a title!