FREE­DOM AT LAST

THE LAND­MARK 377 JUDG­MENT HAS USH­ERED IN A NEW SEX­UAL MORAL­ITY IN IN­DIA. BUT THE BAT­TLE BETWEEN PRO­GRES­SIVE AND RE­GRES­SIVE SOCIAL MORES LOOMS

India Today - - INSIDE - BY DA­MAYANTI DATTA

The de­crim­i­nal­i­sa­tion of Sec­tion 377 of the IPC was a le­gal re­form wait­ing to hap­pen. But plenty of unan­swered ques­tions re­main

‘Seek­ing 25-40, well-placed,

an­i­mal lov­ing, veg­e­tar­ian groom for my son 36, 5’11’’ who works with an NGO, caste no bar (though Iyer pre­ferred).’

When Padma Vish­wanath placed this mat­ri­mo­nial ad in a Mum­bai news­pa­per for her gay son in 2015, the first such ad in In­dia, she just wanted her son to be happy. She did not know that he could face crim­i­nal charges for it, nor that she was do­ing any­thing un­usual. She had faced heart­break when he first came out as gay, only to tran­scend over the years—as mothers can—fam­ily pride, the moral panic of rel­a­tives or the fear of be­ing judged by strangers. On Thurs­day, Septem­ber 6, the Supreme Court val­i­dated what she had told her son long ago: “You can be your­self.” Padma was on top of the world: “It’s time to recog­nise that they are nor­mal, just as left-handed chil­dren are.”

Some­times you need to look into the crys­tal ball to un­der­stand the present. The five se­nior­most judges of the Supreme Court did just that by

dump­ing in the dust­bin of his­tory the de­grad­ing pu­n­ish­ment en­shrined in the black let­ter of law for dif­fer­ent ways of lov­ing and liv­ing, af­fect­ing one in 10 In­dian men and women, at least. The Chief Jus­tice of In­dia Di­pak Misra opened the land­mark judg­ment (Navtej Singh Jo­har & Ors. vs The Union of In­dia) quot­ing the Ger­man thinker Jo­hann Wolf­gang von Goethe: “I am what I am, so take me as I am.” Along with Jus­tices A.M. Khan­wilkar, D.Y. Chan­drachud, R.F. Na­ri­man and Indu Mal­ho­tra, the bench de­clared Sec 377 of the In­dian Pe­nal Code un­con­sti­tu­tional. The 158-year-old law that made “car­nal in­ter­course against the or­der of na­ture” a crim­i­nal of­fence was as good as weeded out—al­beit 72 years af­ter the Bri­tish quit In­dia and 51 years af­ter the UK scrapped it from the statute book.

SHAK­ING THE FOUN­DA­TION OF THE GREAT IN­DIAN FAM­ILY?

Between the thuds of the gavel and a brave new world of sex­ual needs, pref­er­ences and iden­ti­ties, an al­pha­bet soup of iden­ti­ties has ac­quired a new le­git­i­macy: LGBTQQIPAA: les­bian, gay, bi­sex­ual, trans­gen­der, ques­tion­ing, queer, in­ter­sex, pan­sex­ual, an­drog­y­nous, asex­ual and more. But will it dent the age-old world of the Great In­dian Fam­ily? Go­ing by the ver­dict, it should. The court has ce­mented a vi­sion of the Con­sti­tu­tion as a tool of trans­for­ma­tion, an “or­ganic char­ter of pro­gres­sive rights” where the aim is not to lean on “ma­jori­tar­ian social moral­ity”. Would that go against fam­ily val­ues? To the court, the law can­not be “a mute spec­ta­tor” to the strug­gle of peo­ple who are of­ten “the ob­ject of hu­mil­i­a­tion, dis­crim­i­na­tion, sep­a­ra­tion and vi­o­lence” by the state, the so­ci­ety and their own fam­i­lies. In­di­vid­ual au­ton­omy and lib­erty, equal­ity, recog­ni­tion of iden­tity with dig­nity and pri­vacy are the “car­di­nal four cor­ners” of the In­dian Con­sti­tu­tion and the premise of the ver­dict.

Tra­di­tion and moder­nity are clash­ing over same-sex re­la­tion­ships, seen largely as an in­va­sion of deca­dent western cul­ture, al­though his­tor­i­cally present across the board in In­dia. And in a coun­try where sex is fa­mously a hushed-up mys­tery, the law has been the main arena of con­tes­ta­tion. The law is the site where the na­tion al­lows its sex­u­al­ity to be ad­dressed: from the abo­li­tion of sati pratha in 1829, the re­form of the Hindu Mar­riage Act in 1955 to the pro­hi­bi­tion of polygamy in 1956. But nearly 60 years af­ter the ad­vent of the birth con­trol pill, the new-found eco­nomic in­de­pen­dence of women, chang­ing de­mo­graph­ics and global travel in an age of in­for­ma­tion, waves of rad­i­cal judg­ments are re­defin­ing the re­la­tion­ship between the gen­ders, over­turn­ing male dom­i­nance, al­ter­ing ex­pec­ta­tions of love, sex­u­al­ity and mar­riage. From prop­erty rights to women, pre­mar­i­tal sex, live-in re­la­tion­ships and re­def­i­ni­tion of sex­ual vi­o­lence—the march of the law is chang­ing the in­ti­mate space of ev­ery­day life. The de­crim­i­nal­i­sa­tion of Ar­ti­cle 377 of the IPC is just the lat­est change among many wait­ing to hap­pen.

Will it put the in­sti­tu­tion of the In­dian fam­ily, which be­lieves in con­trol­ling ev­ery­thing—re­la­tion­ships, con­duct, prop­erty, ca­reer, mar­riage, par­ent­ing— on the back foot? Let us not for­get that this fam­ily is nec­es­sar­ily het­ero­sex­ual and pa­tri­ar­chal, espe­cially among In­dia’s boom­ing and con­ser­va­tive mid­dle class, says Samita Sen, pro­fes­sor of his­tory at Cam­bridge Univer­sity, UK: “The fam­ily has been the main site of strug­gle for in­di­vid­ual free­dom in In­dia.” A Delhi High Court judg­ment in 1984 had ruled that equal­ity and free­dom have no place in the fam­ily. That op­pres­sive en­vi­ron­ment of­ten forces men and women to keep their sex­ual pref­er­ence a se­cret or get mar­ried un­der duress, de­stroy­ing the lives of their spouses.

“There is the other side of the story, namely, the hypocrisy in­her­ent in

In­dian so­ci­ety,” says social psy­chol­o­gist Ashis Nandy, who does not think In­dian so­ci­ety or fam­ily will be greatly af­fected. Peo­ple will al­ways find a way around it, he be­lieves. “But with the cur­rent po­lit­i­cal regime keep­ing quiet about it and the Supreme Court show­ing in­tol­er­ance to pub­lic ex­pres­sions of con­ser­vatism, the an­tag­o­nism to non-het­ero­sex­ual love may just die out,” he says. Some peo­ple will al­ways find rea­sons to hate, he ex­plains. Psy­cho­an­a­lyt­i­cal lit­er­a­ture shows that patho­log­i­cal ha­tred of peo­ple with al­ter­na­tive sex­u­al­ity is at its peak when there is the ex­is­tence of un­con­scious and la­tent ho­mo­sex­u­al­ity in you, find­ing ex­pres­sion as de­fen­sive out­rage, he points out.

The 377 ver­dict is a land­mark for In­dian mas­culin­ity. The court has ex­plained how early the­o­ries of ho­mo­sex­u­al­ity as a form of psy­chopathol­ogy or de­vel­op­men­tal ar­rest gave way to more en­light­ened per­spec­tives that came to look at it “as a nor­mal and nat­u­ral vari­ant of hu­man sex­u­al­ity”; how laws like 377 cre­ate an at­mos­phere for black­mail, ha­rass­ment and vi­o­lence against that coun­ter­cul­ture; or how 24 coun­tries now al­low same-sex cou­ples to marry, while 28 coun­tries legally recog­nise such part­ner­ships. Will that change social and sex­ual mores? “From the point of view of the state and the law, a male used to be de­fined in terms of het­ero­ge­neous sex­u­al­ity,” says Mangesh Kulka­rni of Pune, a lead­ing voice in mas­culin­ity stud­ies. “That is gone now.” The ver­dict has also dealt a fell blow to the idea of male dom­i­nance over other gen­ders and sex­ual ori­en­ta­tions, or het­eropa­tri­archy, he ex­plains.

MANY UNAN­SWERED QUES­TIONS The le­gal bat­tle may be over, but plenty of unan­swered ques­tions re­main. What hap­pens to the con­cept of a fam­ily how? There will not be the Great In­dian Fam­ily, but there will be many dif­fer­ent types of mod­ern In­dian fam­i­lies, be­lieves so­ci­ol­o­gist Shiv Vis­vanathan, at least, in ur­ban In­dia, with same-sex part­ners and adopted chil­dren. Is In­dia ready for that? The In­dian fam­ily is shaped to a great ex­tent by the Hindu Right and the Mus­lim Right, espe­cially among the mid­dle classes. Al­ready the two sides have re­jected the ver­dict. With their great hold over how to de­fine a fam­ily, will the court’s ideas of iden­tity, au­ton­omy and pri­vacy work? Will the judg­ment guar­an­tee dig­nity in the pub­lic space for mem­bers of the LGBTQ com­mu­nity? What if land­lords re­ject same-sex fam­i­lies? Will schools ac­cept chil­dren adopted by such par­ents? Will it usher in the much-needed revo­lu­tion in sex­u­al­ity, in the way In­dia sees its gay cit­i­zens? Will it lead to gay mar­riages as a con­sti­tu­tional right? The Supreme Court may have to give direc­tives so that those with al­ter­na­tive sex­u­al­ity get in­sti­tu­tional and le­gal sup­port in ed­u­ca­tion, oc­cu­pa­tion, med­i­cal and other civic ameni­ties.

If that hap­pens, the judg­ment will bring in a revo­lu­tion. But for now, it will lessen the emo­tional pain of mil­lions of men and women, says psy­cho­an­a­lyst Sud­hir Kakar, pro­vide them the con­fi­dence and strength to face their fears, al­low them to stop ask­ing if some­thing is wrong with them—anatom­i­cally or psy­cho­log­i­cally. And they will not need to seek so­lace in drugs or cut their lives short, as many do. There are sig­nals that the ide­o­log­i­cal winds are shift­ing across the world, civil and per­sonal lib­er­ties are open­ing up. The bat­tle for al­ter­na­tive sex­u­al­ity has just started. There is a long road ahead. But at least there is a road map. So keep look­ing at the crys­tal ball and wait for the day you can say, “The Great In­dian Fam­ily is dead. Long live 50 shades of Great In­dian Fam­i­lies.” Mean­time, a Mum­bai mother has started look­ing for a “suit­able boy” for her son once again.

Pho­to­graph by BANDEEP SINGH

Part­ners, they live to­gether in Delhi. They met in New York and have been to­gether for seven-and-a-half years (L) MALLIKA VADEHRA, 38, AND CINTHYA MAR­QUEZ, 36

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