"Cause for hope" in India: "Gay rights . . . have finally become a political issue. The rest is only a matter of time" (Shivam Vij)

"The text of Section 377 -- a gift from our departed British friends dating back to 1860 -- states that 'Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal' shall be subject to a punishment up to life imprisonment. The law does not specify what might constitute 'carnal intercourse against the order of nature,' other than to note that 'penetration is sufficient to constitute the carnal intercourse' cited."

-- Shivam Vij, in a newyorker.com "News Desk" post,
"The Dubious Arguments for India's Ban on Gay Sex"

by Ken

Howie wrote yesterday about the appalling Indian Supreme Court decision that overturns a 2009 Delhi High Court that took the sting out of the embarrassing Section 377 by specifying that it doesn't apply to sex between consenting adults. The new ruling, as Shivam Vij puts it, "effectively criminalizes homosexuality."

Vij's piece is well worth looking at for its close look at the kind of argumentation that passed for "reasoning" in the hearings held before two Supreme Court justices in February-March 2012, drawing on notes on the proceedings that have been published online. What becomes alarmingly clear is that the justices know next to nothing about human sexuality and are made as heck the fact that they've been forced to talk about it. ""We never used to discuss this," Justice S. J. Mukhopadhyay said. "Now we are openly discussing it in court."

There was, indeed, much discussion of sex. The judges wanted to know what the word "carnal" in the law meant, what the law intended to proscribe as "against the order of nature," and what sexual acts might be banned under Section 377 if "penetration" was the key criteria.

Amarendra Sharan, the lawyer for the Delhi Commission for the Protection of Child Rights, argued that only sex between a man and a woman was "natural," because it has the possibility of procreation. "Any penetration of the sexual organ" that does not, he continued, "will be against the order of nature." Sharan was asked by the judges about the meaning of "carnal" and "penetration," and read from a 1969 case that defined "carnal intercourse" as "the temporary visitation of an organization" by the penis, "where the primary object was to obtain euphoria, and where the visiting member was partially enveloped by the organization." On that basis, Sharan argued, even mutual masturbation should be considered both "unnatural" and penetrative, and disallowed under Section 377.

Sharan read the definitions of "penetration," "intercourse," and "carnal" from a dictionary. He was asked what was meant by "against the order of nature": "If a gynecologist inserts a hand inside, to find out if a baby is all right," Justice Mukhopadhyay asked, "is it against the ‘order of nature'?" No, Sharan replied, because there would be "no element of carnal, no sexual satisfaction." He was then asked if the insertion of the penis into the nose would constitute carnal intercourse -- a reference to an earlier case, dating from the nineteen-twenties, in which a man was convicted of an "unnatural offense" for having intercourse with the nose of a cow.

It was left to the eminent lawyer Fali Nariman, who was representing a group of parents of gay, lesbian, bisexual, and transgender persons, to clear up the confusion over the language of the law. Nariman explained to the court that the culprit was Thomas Babington Macaulay, the British politician and historian who was the primary author of the 1860 Indian Penal Code. Nariman quoted Macaulay, who had explained the deliberate ambiguity of the wording by insisting 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."

The defendants argued that such Victorian squeamishness was obviously outdated, and pointed to the consequences of Section 377 for the prevention and treatment of AIDS. . . .

Fans of U.S. jurisprudence will be pleased to learn that proponents of restoring the Section 377 status quo cited that eminent jurist Antonin Scalia, with his warning in his Lawrence v. Texas dissent, against decriminalizing sodomy, that it was a slippery slope, that once that happened, they'll all be doing it and God knows what else.

Vij thinks we should remember, though, that Indians haven't had this conversation yet. And he derives encouragement from the fact that now they're being forced to.

In the end, the court's decision rested heavily on two dubious assertions. The first was that homosexuals in India were too small in number to constitute a "class," and could therefore not be subject to discrimination. "What is a bisexual?" Justice Mukhopadhyay wondered aloud during one hearing; when he was given an answer, he stated with confidence that they too were not a "class." Though it was shown that Section 377 has been used mainly to prosecute gay men, the court's judgment maintained that the prohibition against "unnatural" sex could apply even to marital relations, and was therefore non-discriminatory.

The second main element of the court's decision -- which refers, not incidentally, to "the so-called rights of LGBT persons" -- was an assertion of judicial restraint. The proper venue to debate this law, Justice Singhvi said during one hearing, is the Indian Parliament. There was not a little irony to these declamations, because the Indian Supreme Court is renowned for its judicial activism: in recent years, it has forcefully intervened in a great many legislative matters, and Justice Singhvi himself has been a vocal defender of such activism.

The final judgment makes it clear that the issue was not restraint per se, but the judges' belief that the criminalization of homosexuality did not cause sufficient harm to justify any action from the court. The Parliament should feel free to strike the law down, they suggested, but the Supreme Court need not do so. The Naz Foundation is already filing an appeal, but the politicians may yet act on their own. A surprising number of leading political figures have spoken out against the court's decision, and the ruling Congress Party has declared that it will introduce legislation to overturn the law in Parliament, a move supported by several other parties -- a testimony to the enduring impact of the 2009 ruling by the Delhi High Court, which struck a blow against the conspiracy of silence about homosexuality in India. It would be foolish to expect that Parliament will resolve the matter soon, and yet there is some cause for hope: gay rights, which were hardly even discussed in India four years ago, have finally become a political issue. The rest is only a matter of time.

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