The Horrors of 377

Once again, gay people are the criminal underclass of Indian society.

Once again, gay people are the criminal underclass of Indian society.

This is (mostly) a column about comics, graphic novels and related forms of visual storytelling. It’s not often I’ll go off on a political rant or write about things that are totally off-topic, as much as I tend to meander within my chosen subject.

This month, though, there’s something I want to write about that doesn’t have all that much directly to do with comics–although that may change, and soon, given India’s burgeoning independent comics scene.

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Back in 2009, the High Court of Delhi struck down a law that had been on the books since before Indian independence in 1947 (or, for that matter, the establishment of India’s first constitution as an independent country in 1950): Section 377 of the Indian Penal Code.

This law reads:

377. Unnatural offences: 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 term which may extend to ten years, and shall also be liable to fine.

Let it not be said the Brits did nothing for India.

Let it not be said the Brits
did nothing for India.

This little gem of legalese was established as law in India by British rulers in 1861. Vestiges of it still remain in places like Malaysia, Singapore, Pakistan and Jamaica-all British colonies at one time or another. Britain itself got rid of the domestic version of this law in 1967.

The law is also at the core of a grant application I wrote in 2006 to the Guggenheim Foundation, in hopes of receiving one of their famous and career-making fellowships. (I didn’t get it, alas, otherwise you might have heard of me.) My proposal was to research the secret lives of gay men, to discover how they managed in a society that considered them criminals. I had been in touch by email with a number of Indian gay rights activists, and read about stories both tragic-like the killing of two teenage lesbian runaways-and baffling, like male life partners who dutifully got married to women and set up complicated joint households.

The subject of homosexuality in India is as intricate as anything else to do with that culture, and I wanted to study it. The Guggenheim’s polite rejection took away my chance to document the subject under the prestige of one of their fellowships, but I never lost my interest in the topic. Among other things, the existence of Section 377 represented a permanent rift between me and the culture I was born into.

So, in 2009, this is the law the High Court of Delhi declared to be unconstitutional (read: an outdated vestige of foreign, colonial morality at odds with India’s natively-originated, human rights-focused constitution), on the grounds that it was used to persecute LGBT people. When this happened, there were celebrations in the streets. Overnight, a shadow that had hung over gay people in India was suddenly gone: one that criminalized, dismissed and insulted not just (as the law could be read) what gay people do, but what gay people are.

When Section 377 was struck down in 2009, there were celebrations in the streets.

When Section 377 was struck down in 2009, there were celebrations in the streets.

In one quick jump, India had not only caught up to, but in some ways sped ahead of, where the U.S. and many European countries are on issues of gay civil rights, legally and socially. The Indian judiciary had said, as clearly as could be said, that gay people aren’t things “against the order of nature,” they are human beings deserving of rights, dignity and the protection of the law. True, it’s not as though everything changed immediately for the better, and it’s also true that Section 377 wasn’t (and isn’t) the only barrier facing gay people in India. But it was a big step, the biggest there had been, in a society that so often simply refuses to even discuss the subject, much less engage in a public dialogue about it.

Fast forward to late December of 2013. The supreme court of India, in an act of cowardice and abuse of judicial power so blatant that it’s unquestionably a product of political maneuvering and corruption, said that the Delhi high court hadn’t really thought through the implications of declaring 377 to be unconstitutional, and said that deciding the law’s fate was a matter best left to the Parliament of India, not the judiciary. Section 377, as quickly as it was struck down, was put back on the books, now to wend its way interminably through the halls of bureaucracy. A petition from the government and citizens to review the questionable decision was rejected just last week.

When 377 was restored, gay people in India went overnight from being free to once again being criminals, after just four short years. I won’t subject you to all the haywire reasoning presented in the supreme court’s decision; it makes absolutely no sense, no matter how thoroughly I’ve tried to explain it to anyone. One example from the decision: the law doesn’t really persecute anyone because the minority it references is too small to deserve protection, so why not keep it around. Yes, you read that right.

(One famous cry for retaining such outdated laws is the argument that they can be used to legally prosecute things like bestiality-don’t strike them off the books, conservatives say, otherwise people will be performing all sorts of depraved acts with impunity. What they don’t grasp is that any law that is so vague that it could be read to refer to both consensual relations between two adults and rutting with an animal in a single phrase, may be a little too imprecise to really serve as an effective or meaningful law in the first place. And Americans might recognize the same “slippery slope” argument regarding marriage equality, with images of people marrying their pets. But I digress.)

Queen Victoria, "Empress of India," never actually made it there.

Queen Victoria, “Empress of India,” never actually made it there.

As with all laws that attempt to dictate the morality of what people do in private, not just gay people are affected. In actual practice, Section 377 is used mostly by corrupt police to harass and blackmail Indian citizens and foreign visitors. And naturally, as happens when you stigmatize any group of people in society with unjust laws, crimes against such a group (beatings, torture, rape-often committed by the police themselves) are rarely reported or are treated dismissively on the rare occasions when they are reported. The few individuals who have been courageous enough to come forward with reports of such treatment have been shamed by the courts themselves, their accusations often dismissed without investigation.

There are so many things wrong with both 377 and its restoration, it’s hard to know where to start. Only Victorian morality would dare to put language like “against the order of nature” into a law. The religious overtones of the law get to the heart of 377’s true irrelevance to both modern times and an Indian context.

What’s bizarre to me is that conservative Indian Hindus and Muslims alike, normally so ready to disagree about virtually anything, seem to have both taken up the Victorian tone about homosexuality. For the most part, neither Hindus nor Muslims especially cared about it one way or another before British colonialism. The British evinced outrage at any expression of homosexuality in Indian society (though, naturally, they consumed it voraciously in secret). The mixed message resulted in a sort of Stockholm syndrome, in which homophobia became soaked into the mindset of the colonial Indian, as it was built into western education at the time. Be this, and you’re a backward heathen. Be that, and you can almost be one of us.

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There are conservatives in India claiming to embrace the idea of traditional Hinduism and Islam, both of which have a rather intricate position on the notions addressed (albeit vaguely) in 377. Suffice it to say that homosexuality was hardly condemned by either. As one commentator put it, “In the land of Vatsyayana, Khajuraho and Konark, it can be no one’s case that age-old Hindu culture was inherently conservative.” Particularly, to paraphrase, “conservative” in a western notion of that term.

Some of the more tame carvings from the temples at Khajurao. Are they criminals too, or just the friskier ones on the other side?

Some of the more tame carvings from the temples at Khajuraho.
Are they criminals too, or just the friskier ones on the other side?

What does all this mean in the present, moving on from the dark history of colonialism that extended into the last century?

A society like India, you would think, with its mix of ancient history and technological and economic modernity, the land of Gandhi resisting injustices both domestic and foreign, would be universally outraged that a court could so quickly take away the rights of a whole population of people.

And yes, there are those who are speaking out against it, and loudly. But as much disgust as there is in India and abroad over the restoration of 377, the return to 1860s moral probity is being lauded by India’s version of Republicans (with some hints of Tea Party thrown in for flavor), the Bharatiya Janata Party (BJP).

Perhaps fearful that conservatives will think that the party is moving too much toward the center after the emergence of even more extremely right-wing conservative movements, or in a craven attempt to cash in on conservative sentiment by trying to show relevance to current events-or perhaps simply to use this issue, as it often is, as a distraction from bigger and more intricate ones for which they don’t have a solution-the BJP’s president, Rajnath Singh, proclaimed: “We will state (at an all-party meeting, if it is called) that we support Section 377 because we believe that homosexuality is an unnatural act and cannot be supported.”

As far as I’m concerned, and modern medical science seems to agree, homosexuality is an intrinsic property, not a single “act.” But hey, why quibble for precision on just this one element when the whole thing makes no sense. (As a professor of mine once said: “If you don’t like carrots, don’t eat carrots. Don’t make them illegal so you don’t have to worry about yourself or anyone ever eating them.”)

So much the stranger, then, that Indian conservatives have become advocates of a law imposed by a western colonial power a century and a half ago, through procedures that didn’t involve the consent of a single Indian person-a law struck down by that same colonial power in their own country almost half a century ago. If it’s not good enough any more for the people who came up with it, I want someone to pause to consider, how can it possibly be good enough for anyone at all?

Indian consular diplomat Devyani Khobragade. She was arrested here, so go arrest all the gay Americans in India, says the BJP.

Indian consular diplomat Devyani Khobragade.

Whatever the issue of gay rights and civil liberties for gay people may mean to you personally, in India or anywhere else, the incendiary nature of the issue bleeds out into other places. Recently, an Indian consular diplomat was arrested in New York for visa fraud in a case involving misrepresentations about the salary and working conditions of her nanny. The Vienna convention does not protect diplomats from visa fraud, hence the arrest. The situation has been causing tensions with India, not unexpectedly. But what I thought was interesting was a statement by Yashwant Sinha, a Bharatiya Janata Party member and former Indian finance minister:

The media has reported that we have issued visas to a number of U.S. diplomats’ companions. “Companions” means that they are of the same sex. It is completely illegal in our country. Just as paying less wages was illegal in the U.S. So, why doesn’t the government of India go ahead and arrest all of them? Put them behind bars, prosecute them in this country and punish them.

In other words, round up gay American diplomats and their partners and fling them in jail, making use of good old Section 377 to avenge American temerity for arresting an Indian diplomat working abroad. It harks back to insane statements, not only by people in India but also elsewhere, that homosexuality is somehow a western vice imported into cultures where it didn’t exist before. But it also reveals how 377 is a law of conveniences, a catch-all intended to accommodate whatever is dropped within its blurry outlines.

Sorry, folks: a history of homosexuality exists in all cultures, for the simple reason that homosexual people exist in all cultures, and always have. To deny gay people’s existence, to criminalize or marginalize any group of people based on sexual orientation or any other factor other than outright (and clearly defined) criminality, or to continue on with the scientifically and socially disproven argument that being gay is a “lifestyle” that some number of degenerates embrace by choice, belongs in a catalog of historical horrors that we should look back upon, shake our heads, and be thankful are no more.

Many rivers to cross. Let's hope we don't have to recross this one again.

Many rivers to cross. Let’s hope we don’t have to recross this one again.

Yet there it is, Section 377, with its pursed Victorian lips, back on the books. Look at what’s going on in Russia (with its unique twist on the issue, saying that being openly gay constitutes child-damaging propaganda); or Uganda (using the familiar old language, “carnal knowledge against the order of nature” to justify the execution of gay people); and so many other places. Look at what still goes on in the U.S., with advancements in civil rights happening in state after state while at the same time members of the government, some of them now known to have been gay all along, go on homophobic rants and vote against gay rights, the better to court conservative constituencies.

But then, clearly, this issue is so irrational, polarizing and needlessly political, that no one’s thinking straight. Pun intended.

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