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 will lead to the commodification of homosexuals’

Interview I conducted in 2009 after the Delhi High Court decriminalised homosexuality.

PURUSHOTHAMAN MULLOLI is general secretary of the Joint Action Council, Kannur-India (JACKINDIA) which intervened in the Section 377 case in the Delhi High Court. In an interview he explains his opposition to the case.

What is JACKINDIA?
We are a 35 years old organization working on HIV-AIDS. I have myself been involved for the last 22 years. We started in Kannur, Kerala, but have been based in Delhi for ten years now to fight our battle at a national level.

What is your main opposition to the 377 case?
Homosexuals are branded by foreign-funded AIDS NGOs, such as the petitioner Naz Foundation in this case, as ‘high-risk groups’. This is not based on any study or scientific evidence. In our appeal we asked for evidence that homosexuals are a high-risk group. NACO was supposed to conduct a study that is till date incomplete and unpublished. The judgement and the media attention to it has completely ignored that the case was about AIDS. Homosexuals are already a marginalised group. If you brand them as high-risk then you further marginalize and degrade them. This is a violation of their human rights! Secondly, the NAZ contention was that they’re unable to work with homosexuals on safe sex because homosexuals go underground because of 377. They provide no evidence that homosexuals are going underground.

But at any rate, all that the judgement does is decriminalize private consensual homosexual sex. You don’t seem to be against that?
I am not against that at all. But 377 does not criminalise it at all! Read 377. It does not mention homosexuality at all. This is a fraud campaign that has been unleashed on this nation.

But 377 does criminalise all sex it says is against the “order of nature”?
But to prove that you need a victim and a witness. If it’s consensual there’s no case. Sow hy this fuss?

They say it is used for harassment.
But they don’t provide any evidence. Instead this is just going to divide the nation on the lines of sexual preferences!

But the judgement talks of diversity, inclusiveness.
No, on the contrary it produces a new class of people. This is like a reservation programme on the basis of sexual orientation.

But the judgement makes no special provisions for them, only allows consensual private sex.
But if you’re doing it in your home consensually where’s the victim to file the case? If you do it in Nehru Park then even heterosexual sex would be book for obscenity.

In that case the reading down of 377 is insignificant. Why are you opposing it?
It will lead to the commodification of homosexuals. That is a huge market waiting to exploit the opportunity. It’s a 15 billion dollars business. It ‘s a sex industry waiting to be exploited.

Worldwide?
No, in India alone!

How did you get the figure?
It’s from a study that I will disclose at the right time.

But what will this business be like? And are you saying this was the motive of Naz Foundation?
Naz and others are the pimps of the sex industry. These are not GB Road like pimps but they pretend to be consultants. What will happen now is that they will open gay clubs and bars. That’s how the business will flourish.

But if there are straight clubs what’s the problem with gay clubs?
There will be prostitution all over. Gay sex is being allowed but there’s amovement of prostitutes demanding sex workers’ licence. If gay sex is being allowed why can’t prostitutes be given licences?

If prostitution is licensed then you will support the reading down of 377?
Then anything can happen. Then you can sit in your home and sell your father, sell your mother, negotiate the rates for your sister.

Coming back the AIDS argument, they say that this will help control AIDS by increasing awareness of safe sex amongst homosexuals.
But they don’t give any evidence. Five years into the case, NACO came up with a 21 pages long affidavit endorsing that homosexuals are a high-risk group but backed it with no study, no evidence. It’s a fraud of an affidavit. We have proven this in our report. NACO is anti-national.

But why is NACO doing this then?
Ask them. I am a villager and all I’m asking for is evidence of their claims. Do you know that till date there is no scientific reference of the isolation of the HIV virus, there’s no evidence that HIV causes AIDS, or that it is sexually transmitted? I’m just a villager. All I’m asking for is evidence of these claims.

But homosexuals are said to be high risk because of unprotected sex with multiple partners.
Give evidence.

You are virtually saying AIDS doesn’t exist, but you said you’ve been working on AIDS for 22 years. What have you been doing?
A lot. You will see when the time comes. Everyone’s clothes will be off, all the foregn-funded NGOs who make noise will be unmasked and their businesses exposed.