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
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.