section 377

Gay rights: Why even India’s courts will find it hard to take away what has already been granted

No matter what comes next, the LGBT community has already proved that in a true democracy, freedom to speak, to exist, is not a gift to bestow and withdraw at will.

The morning after my first night spent with a guy, I walked across a chilly Morningside Park to a rehearsal for a satirical Christmas show called XMas. In said show, I had been cast in the (again, satirical, and in no way mean-spirited) part of Gay Santa. At that rehearsal, the music director and lyricist of the show, my very dear friend Charlotte, had decided I would learn and rehearse my big number in the show, titled, I kid you not, Santa’s Coming Out the Clause-et. At the end of the rehearsal, Charlotte was so pleased with my progress that she asked me to perform the song for the rest of the cast. It was, I need hardly say, a mortifying experience.

This was November of 2008, fall semester of my Junior year at Columbia in New York, which, in a family like mine (aggressively open-minded, with another gay son, four years older, who had come out at 16), made it sort of the eleventh hour as far as reckoning with my sexuality was concerned. Between that point and the day of the performance about a month later, things got gradually better. After getting black-out drunk at a party in Harlem on the night of President Obama’s election and spewing my guts, first figuratively to one of my closer friends, then literally back home, I started telling some people about what was going on, received an unsurprising outpouring of support from said people, and continued testing the waters, which was, I supposed, what one ought to do in such a situation. I was a more cautious person then than I am now.

The morning of the show arrived, my 15-year-old golden retriever died, and, in the evening, I had my first ever romantic-type spat with the guy whom, by then, I was more or less secretly dating (we broke up about a week later). It was not a pleasant day. In January – after a somewhat less than pleasant Christmas, and an intermittently wonderful/harrowing trip to France and Belgium with the secret ex whom I had completely wronged and the close mutual friend who knew everything (poor her) – I left for India for the first time, where I was to spend a semester studying in Delhi.

At the time, I knew nothing of India’s arcane laws regarding homosexuality, and anyway didn’t care much. Delhi was to be a kind of detox. This is not to say that I came to India for the sake of soul-searching – I had no intention of being one of those two-weeks-to-enlightenment tourists – rather, that I figured a change of scenery and people would give me a chance to feel out the contours of my emerging sexual identity, or at least offer a break from the wracking sense of guilt and isolation (not to mention feeling silly about feeling isolated when I knew I didn’t have to and all those other dangerously involuted feelings you get when you allow yourself to become so afraid of feelings in the first place that feelings themselves become a source of shame and self-ridicule and so on) that had been plaguing me for months. I reflected a little (not too much, I swear) and came back that summer prepared to figure stuff out at whatever pace suited me, an incredible luxury that, in my East Coast American bubble, I barely recognised having.

July came. I was living and working back home in New York. I failed to notice the Delhi High Court’s landmark decision to repeal Section 377 of the Indian Penal Code, the now-famous colonial-era injunction against "carnal intercourse against the order of nature with any man, woman or animal" (widely understood to mean anal sex between men, or to use the more colourful Victorian terminology, buggery) because, well, I guess it didn’t seem terribly relevant to me. I didn’t know at the time that I would return to India in January 2012, nor that I would be an openly gay man when I did so.


In 2013, my Christmas present from the Indian courts was to see people like me wiped off the political slate entirely. This time I noticed. At that point, I’d spent nearly two years living and working out of Bandra, the so-called Queen (ha) of the suburbs in Mumbai, a city of superlatives so well-known I need hardly repeat them here. Bandra is, in my experience, a rather more tolerant place than much of India, home to a native Catholic population long known for its comparative permissiveness, and to an ever-growing community of young creatives working in fields like media, film, fashion, art, etc. Which is to say it’s exactly the kind of place I’ve always lived, but with banyan trees.

Bandra, and other similarly well-educated and affluent parts of Mumbai, are full of queer people and the straight ones who just couldn’t possibly care less about something as trivial as sexuality. Things had been looking up since 2009. Online social networks for queer people, though used largely for sex, had given young people a forum for speaking frankly about their desires, and the rhetorical import of acknowledging the sovereign right to privacy for all people, no matter their sexual proclivities, opened doors previously sealed by fear and conservatism and familial finger-wagging. Even I had opened up since moving to Mumbai. Four years ago, I would never have written what you read above in a public forum, would never have shown so much proverbial leg. I only started wearing above-the-knee shorts after a year living in India. This is both literally and figuratively true.

But I guess, fool that I am, I didn’t realise from the comfort of my new Mumbai bubble, just how powerful those wagging fingers still were. It came as a shock, then, when the Supreme Court passed down its ruling to re-criminalise homosexuality under Section 377, claiming that the court had no jurisdiction to decide on legislative matters – essentially passing the buck. I don’t want to dwell here on why that ruling was so patently wrong. Many people have done so – and eloquently – over the last two years. I want instead to talk about the fact that the import of that judgment goes well beyond the question of penetrative gay sex and whether or not I, and others, can, you know, have it. It comes to very basic questions of citizenship and how we – Americans or Indians or whomever, really – live as people: male, female, or gender non-conforming; gay, straight, or queer; thinking, breathing, ethical beings.

It struck me immediately when the ruling came down in 2013 that the Supreme Court had handed down its judgment just days before the one-year anniversary of the horrific Delhi gang rape that put India’s scandalous record for sex crimes and women’s rights in the crosshairs of the global media. The outrage – just and necessary, of course – evoked by that brutal event resulted in new laws and a hell of a lot of hand-wringing. There was a lot of paternalism in the response, too, much discussion of the role women played in eliciting such strong, uncontrollable sexual urges from men. Lots of comments about makeup and short skirts and going out late, all the commonplaces of life in my tiny corner of the subcontinent. Lots of discussion of how to protect India’s women, but precious little (except from the expected spheres) on how to create an India in which protection wouldn’t be necessary.

It’s the same principle that informs much of the policy surrounding speech and expression in India; and freedoms like having sex with who you like and wearing what you like fall, at least to my mind, very much under that rubric. Whether it’s the ongoing bane of censorship on television and in movie theatres (never of violence, always of sex and nudity), the suggestion that short skirts provoke men to unthinkable acts of sexual violence, or the legal decision that consenting adults have no constitutional right to do what they like with their bodies – the message sent, loud and clear, is that citizens (which term, I’m well aware, does not include me) need to be treated as children incapable of making their own decisions or controlling their own impulses.


A couple months before the 2013 ruling, I went to an event in Bandra during which an Indian constitutional attorney argued that the Indian Constitution’s positive treatment of free speech was a better model than the US Bill of Rights’ negative approach. I’ll explain this better in a moment.

The events of my first few years in India, culminating in the 377 ruling in 2013, got me thinking more critically about this assertion. Now, I am the last person to claim that the American system of government functions perfectly. We need only look at the last few years of congressional politics (not to mention the rising currency of Messrs. Trump and Cruz) to see how truly laughable the American system can, at its worst, become. But on reflection I came to take a different view from the attorney at that event of the fundamental rhetorical difference between the status of an American citizen and an Indian citizen vis-à-vis our respective constitutional rights.

The opening of Article 19 of the Indian Constitution reads as follows:

(1) All citizens shall have the right –

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

etc.

The First Amendment to the American Constitution, which is the foundational statement of American democracy and the (presumably at least partial) inspiration for the Article quoted above, reads thus:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Not to get technical here (or, God forbid, rabidly jingoistic), but there’s an enormously important syntactical difference between these two statements – and it goes beyond the frankly superior elegance and clarity of the Indian version. In the American iteration of the idea, the government is the passive party. The First Amendment enumerates stuff the government can’t do and rights it can’t abridge, the implication being, I think, that those rights are inherent not just in the experience of citizenship, but in the very experience of humanness. The possibility of the Amendment’s obverse – that Congress shall make laws respecting, etc. – is precluded by the language of the original.

The Indian Constitution takes a different tack. The government actively grants the right to speech, grants the right to assembly, implying that those rights issue from the government itself and, by extension, that government can restrict/remove them at will (check out 19.2: “Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause...” – see what I mean?). The obverse of the opening statement here can, evidently, be reversed at will; citizens shall have or shall not have, either way the government itself decides.

The most common issue arising from this comes in the form of protecting religious sensibilities, whereby people have been arrested and imprisoned for trifles like posts on Facebook. There’s reason for this: despite the whole melting pot thing, the US is a comparatively homogenous nation in terms of religion and language and education and wealth. India’s eruptions into communal violence over the years have proved this great, young nation to be a powder keg. But, as American Civil Liberties Union-affiliated Americans love to say, the restriction of basic civil liberties is a very slippery slope.

And this is the essential issue: Like a doting parent, the Indian government curtails risk – which is to say, curtails freedom – in order to avoid offence, thereby sending the message that the populace is not expected to contain itself, not expected to exercise restraint in the face of provocation. The woman in the short skirt or the flash of nudity on the movie screen or the gay man exercising his sexuality – these modern provocations could incite all kinds of reactions from India’s conservative majority. Boys, so to speak, will be boys.

But laws – and maybe I’m speaking from within my transportable bubble again – have a higher task than to protect the mores of the majority. We have laws to show a young woman that her body is hers and hers alone, no matter what she chooses to wear; we have laws to show a young man coming to terms with his identity that, at the most basic level, he exists. It’s hard to understand just what that means until you’ve experienced, as so many generations of queer people have, what it’s like not to.

In the circles I move in, and among the people I know, the last few years have shown the Supreme Court’s decision to be a cultural bogeyman, a regressive attempt to pass responsibility or curry favour with religious conservatives – after all, how many issues out there can galvanise the respective right-wings of India’s Christian, Muslim, and Hindu populations? And yet, the change of the law has not been so innocuous as I had perhaps hoped. Hundreds have been booked under charges related to 377, and many others have faced harassment, extortion, and intimidation as a direct result of its parameters. Whether or not I felt the threat directly, the truth remains that we all, in an instant, became that much more vulnerable.

The greater danger, it seemed to me then, and still seems now, was for young people across this country, confronting, as I did eight years ago, their own questions and feelings and questions about those feelings and all the concomitant confusion that goes along with that. Because if not even the State, the apparatus that grants you your very ontological status, can validate you, how can you ever expect your family or friends to do so? How can you ask for love and compassion and, yes, protection from a system that does not even acknowledge your right to be?

It is indeed, then, a question of speech, whether it is the speech we produce through words or through our bodies. Sex can be an eloquent act. It speaks of love and trust and communion and, the thing that seems most terrifying to conservatives in America and India alike, pleasure. And it will speak, regardless. Because here’s the thing: The gag has already been removed, the words acquired. And language learned, even – perhaps especially – in the first blush of freedom cannot be unlearned. No child forgets the word Yes or No or Why – and least of all, the word I.

The bravery of India’s gay community in the last two years – a bravery expressed, at least in part, by carrying on as though nothing had changed – has demonstrated the futility of attempting to take away what has already been granted. The Supreme Court’s decision a few days back to refer a curative petition against the 2013 ruling to a five-judge panel proves that the Court has, in a surprisingly noble act, admitted that its ruling two years ago might very well have been the egregious mistake that so many of us already know it was.

There is no guarantee that that ruling, whenever it comes, will be our favour, but no matter what comes next, India’s queer community already succeeded in doing what I hoped it would. We’ve engaged in the simplest, most important form of protest possible: We’ve lived. And in so doing, we’ve also, I hope, proved that in a true democracy, freedom to speak, to exist, is not a gift to bestow and withdraw at will. It must be a reality – for everyone.

This article first appeared on Unmapped.

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