Supreme Court's decision on section 377: Do you fear gays less now?

By Gopal Sankaranarayanan
At 9:45 am on a cool December morning in New Delhi, the terrace outside the court of the Chief Justice of India provided an unusual sight. Accustomed to the boring black and white of their ilk, lawyers at the Supreme Court now witnessed a large group of colourfully clad folks — men and women with funky hairstyles and boys and girls with hats and scarves — even a purple bowtie was spotted.

For some reason, their uplifting hues and their bubbly demeanour was infectious — one could not but feel that the world is a better place. In less than an hour, that atmosphere was gone, the colour absent and their bearers in mourning. In between, four sentences read out by Justice Singhvi from the judgement he had co-authored with Justice Mukhopadhyaya had sounded the death knell for the ebullience that had sustained thus far.

The Buggery Act of 1533

Much gratitude is due to that great clairvoyant Henry VIII for having realized in 1533 that almost 600 years later, the subjects of the Indian subcontinent would need protection from these debauched adults who dare to engage in private and consensual acts of sex. He pushed through the Buggery Act, describing it as an “unnatural sexual act against the will of God and man” and provided the lenient sentence of death by hanging. The appropriately named Indian Penal Code enacted as recently as 1860 traced the origins of Section 377 to this wonderful act of legislation, but some misplaced generosity ensured that the sentence would only be imprisonment for life.

On a regular basis since then, conscientious members of the Indian police force have made it a point to engage with elements of this criminal tribe, and evolved interesting methods of resolution such as assault, blackmail, and when all else is lost, bribery. For some reason, there were some thankless groups that remained disgruntled, and who challenged Section 377 in the courts on the frivolous basis that it violated something called the Constitution of India, particularly the provisions that secured dignity, privacy equality and access to medical care without intimidation.

Oddly, this specious plea found favour with the Delhi High Court, and in what could only be attributed to a murky conspiracy between the LGBT community and the Central government, neither was aggrieved. What would the nation do? How would we be safe? Rising to the occasion in response to this plea from the law-abiding heterosexual public came our saviours — the BJP’s BP Singhal, the All-India Muslim Personal Law Board, the Apostolic Churches Alliance and several other public-spirited citizens who had together eradicated poverty, hunger and hate from the land. Using such tried and tested legal tools as fear, superstition and morals, our champions unleashed a relentless onslaught against those who spoke of bodily autonomy and consensual intimacy.

Denizens of Social Fringe

The counsel for Trust God Ministries said the right to life was not absolute and might be curtailed in the interest of morality. His colleague acting on behalf of Singhal was deferential enough to acknowledge that Christianity had given dignity and respect to the Indians and the institution of court. On behalf of the Apostolic Churches Alliance, we were educated that homosexuality led to the dangerous “gay bowel syndrome” and the Muslim Personal Board reminded the court that the Sharia prescribed death by stoning for sodomy.

The governments, both of Delhi and the Centre, chose to support the high court judgement, much to the chagrin of the Bench, which felt that there was duplicity in such a stand. If the true contesting parties, i.e. the respective governments and the LGBT interests were happy with the high court watering down what was truly the heart and soul of the penal code, then surely nobody else needs to be heard.

But wait, what about us, the true citizens of India? The ones who know natural from unnatural, who choose to biologically procreate, and who pray thrice a day. It is we who gave to ourselves the Constitution, not to be shared with the denizens of the social fringe.

It is from us that this nation obtains its living ethic, and it is we who infuse it with the lifeblood of love and culture. And, er, tolerance. Today, the Supreme Court has vindicated our faith in it and protected us, the majority. The religious, the moral and the ethical have now been dubbed the legal. We can without fear go on with our lives, secure in the knowledge that no lurking homosexual can invade our peace of mind and wreck our happy homes.

The writer is an advocate at the Supreme Court of India.