Religion, Homophobia and the Aftermath of 377: Some notes from Jamaat-e-Islami Hind's “protest against homosexuality”

I was walking past Azad Maidan on my way to CST when I saw something that caught my eye. It was, as most things at Azad Maidan are, a protest. But the nature of the protest is what intrigued me: it was a “protest against homosexuality”, organised by Jammat-e-Islami Hind (JIH), which appraised the Supreme Court verdict of December 11^th, 2013, which effectively criminalized consensual same-sex between adults under the archaic Section 377 of the Indian Penal Code. This wasn’t surprising since Jamaat-e-Islami Hind (JIH) has been very vocal in its support of the Supreme Court verdict. Against my better judgement, I decided to stay there for a few moments, and try to understand what this “protest” was really about. Never before, have I been in an atmosphere that was so intolerant and venomous. I sat amidst JIH volunteers holding placards like: “GAY: God Abhors You!”, “Homosexuals are selfish”, and “Gay rights are not human rights!” It was, also, an atmosphere fraught with fallacies, hatred and misinformation.

Before I proceed with an overview, and criticism of the JIH “protest”, let me clarify a few things: firstly, I write as a student of gender studies, so my views are more concerned with JIH as representing a patriarchal ideology, than they are as a religious organisation. There are homophobic and irrational views across the political and religious spectrum—and most of them are as worse, if not more, than the others. In this case, as it just so happens, Jamaat is an Islamic organisation. In fact, they had even roped in a sadhu to speak out against homosexuality. Secondly, in this article, my argument is against the misinformation, lies and inaccuracies about homosexuality that the JIH presented. Finally, this article attempts to examine how differing ideologies (religious, political) coalesce under patriarchy and, in that respect, it also presents a critique of such pervasive patriarchal structures.

“Homosexuality is a Western idea; it is against Indian culture; it will lead to population decline”

First of all, there is no evidence whatsoever to indicate that homosexuality made its way from the West to India—even during colonialism. That India has its own legacy of homoerotic representations in literature and art, and that there are prominent queer themes in Hinduism, too, is entirely (and purposefully) absent in their discourse. As Devdutt Patnaik writes:

“…homosexual activities – in some form – did exist in ancient India…its existence was acknowledged but not approved. There was some degree of tolerance when the act expressed itself in heterosexual terms.”

Indian “culture”, therefore, for organisations like Jamaat and the political Right, exists purely in a rhetorical space, and is divorced from historical facts. Their limited and myopic reading of history of the West also fails to see the moral panic over homosexuality, even in the United States and Britain, and Europe. As Abhay Kumar points out:

“The argument is made in such a way that Indians – both Hindus and Muslims – are opposed to homosexuality, while Indian culture is painted as morally sound and Western culture is morally repulsive and corrupt. The difference between Hindus and Muslims, seen as the source of perennial ‘Hindu-Muslim’ conflicts, suddenly disappears.”

Thus, events like the persecution of homosexuals by the Third Reich, the Stonewall riots, the assassination of Harvey Milk, Proposition 8, and the present-day persecution of homosexuals in Russia—to state a few examples—cannot at all figure in their interpretation of the “West”. It, like their definition of an “Indian culture”, is an empty category to be used for political mobilisation. In fact, what both Jamaat and the sadhu forgot was that Section 377 is an explicitly colonial legislation, based on Victorian morality and control over sexuality. To put it simply, had it not been for the West and British colonialism, there would be no Section 377, and by extension, there would be nothing for Jamaat to protest against.

Likewise, there is no evidence to suggest that it is homosexuality that’s affecting population growth in the West; and the same would hold true for India. An examination of the population growth and total percentage of homosexuals in the United States of America, for instance, lends no credibility to the claims of the JIH. The population of the USA in 1970 was 205.1 million, and in 2012 it was 313.8 million—a population rise of approx. 65.3% in 42 years. At the same time, according to a study conducted by the Williams Institute in 2011, an estimated 3.5% of adults in the USA identify as lesbian, gay or bisexual. On the other hand, as of 2013, the contraceptive prevalence rate in the USA is 76.4%. This, coupled with factors like increased costs of livings, declining family size, capital-intensive labour, and so on, have possibly contributed to a slower growth rate – and, most definitely, not homosexuality.

“Homosexuality is a disease; it causes AIDS; it can be cured”

As with their earlier claims of homosexuality being a factor causing population – and thereby, civilizational – decline, these claims of the JIH, too, are untenable. First of all, in 1973, the American Psychological Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-II) eliminated ‘homosexuality’ as a mental disorder. Through this elimination, argues Dr Robert Spitzer, who authored the paper:

“…we will be removing one of the justifications for the denial of civil rights to individuals whose only crime is that their sexual orientation is to members of the same sex.”

Clearly, then, homosexuality per se is not a deviance, or a disorder, and much less a disease (However, the ASA’s usage of the term ‘Sexual Orientation Disturbance’, too, is extremely problematic. But that’s an argument for another discussion). Further, questioning the givenness of gender and sexual identities, anthropologists have presented compelling cases wherein several indigenous cultures (and, even biology) do not conform to the binary model of gender. Anne Fausto-Sterling, for instance, has presented a historical overview of “intersex” identities and argues for a need to think of five sexes, and not two. Sharyn Graham, studying the Bugis in Indonesia, too, presents a case for five genders, as well as a ‘meta-gender identity’.

Their arguments on HIV and AIDS, too, are ill-founded. The human immunodeficiency virus (HIV) is transmitted by only four means—of which, homosexuality can account for only one, i.e., unprotected sexual intercourse with an infected partner. It is estimated that 85 to 87% of all HIV transmission is through unprotected sex. And while anal sex does increase the chances of HIV transmission, it is difficult to estimate exactly how much of it is through homosexual sex. Thus, homosexuals who have sex without using condoms would be at no more, or less, risk of contracting HIV, than heterosexuals who do the same.

According to the Supreme Court verdict, HIV prevalence among MSM (Men who have sex with men) is approximately 7%, and that there are about 25 lakh MSM in India presently. This, however, is a contested figure, as the category of MSM does not just include gays, but also men who are married, and do not identify themselves as homosexuals. According to the Behavioural Sentinel Surveillance (BSS) report in 2006, “three percent” of all respondents “indulged in sex with males in the last one year”. And, in the states with high awareness on the issue “the involvement was also reported to be the highest”; among these, “only one-fifth used condoms during the last occasion of sex with a male partner” (BSS, 2006: p. xix). The BSS 2006 report on MSM further estimates that, on an average, consistent condom use among MSM is approximately between 35 to 36% (this includes both, with commercial and non-commercial partners, in 10 Indian cities) (ibid, p. 42).

Thus, on a practical note, the dynamic (and dangerous) nature of HIV transmission makes it extremely difficult to chart out an exact statistical figure of risks. Instead, it is more feasible to understand the notion of “risk” through vulnerabilities—that is to say: communities that are socially, economically and culturally vulnerable are at a greater risk of contracting HIV. By forcing the question of AIDS on only homosexuals, we run the risk of misunderstanding how it affects other marginalised groups, like drug users, female sex workers, AIDS widows and orphans. Furthermore, as Shivananda Khan of Naz Foundation (one of the petitioners in the SC) argues, factors like stigma, discrimination, violence etc. are responsible for driving the disease underground, and these seriously harm intervention efforts that are trying to address issues like transmission, prevention and building support systems for people living with HIV/AIDS (PLHAs). This persecution of homosexuals—and, those who work on health issues of MSM—is, thus, framed under the misguided assumption that social ostracism can deal with AIDS.

In fact, JIH wants these people to hide, and be underground—to live in khauf (fear), as one of their speakers put it.They said, that after the 2009 verdict, gays “came out on the street and marched fearlessly”. This, for the JIH, is in absolute contravention of patriarchal norms. Homosexuals, further to being persecuted, must also be deeply shamed for being who—and, what—they are. More to the point, not only is this attitude being deeply dehumanizing, it is, I argue, also one that seeks to entrench them in the worldview of the dominant patriarchal discourse.

The questions that I have raised above, however, are of no concern to the Jamaat-e-Islami Hind, and other patriarchal ideologies. They are resistant to viewing social reality, and problems, as complex; for them, the force of their arguments comes from simplifying issues of sexuality, reducing it to a notion of patriarchal control over bodies, and stems from the concern—or obsession, more correctly—over control of sexuality and property rights. For instance, their supposed “cure” for homosexuality is early marriage. In older days, they said, people were married off precisely because this “prevented them from getting homosexual desires”. So, for people to get these “desires” in the first place, would not the homosexual desire be “natural” in all of us?—which must, then, be “prevented”?

Further, they claimed: “If we legalise homosexuality today, then tomorrow will we also legalise crime, rape, sodomy, bestiality, incest, and so on?” Once again, the Jamaat speakers displayed their ineptitude at understanding Section 377. In cases of rape and sodomy, insofar as there is evidence to indicate that it was non-consensual and/or coercive, Section 377 can, in theory, be applied—and the victims of such sexual assaults could be women, minors and even other men.The merit of the Delhi High Court verdict was that it presented such a nuanced reading. But nuances, for Jamaat, and other like-minded organisations, are almost incomprehensible, it would appear. In fact, they would rather cite the “historical evidence” of the destruction of Sodom and Gomorrah, to justify their view that homosexuality is a sin, that it is immoral, and so on. I won’t even try providing any credible references to refute these claims because that would only insult my intelligence, and that of the readers’. Their entire “protest” was rife with such logical inaccuracies. This evidently demonstrates that the JIH did not have the first clue about what homosexuality actually entails; theirs was, from the beginning, a prejudiced view—nothing more, nothing less. However, the crux of Jamaat’s protest, I suspect has more to do with their desire to portray themselves as a masculine, chauvinistic outfit, than one actually concerned with religion.

“The government must not amend Section 377, or they will lose our votes”

I confess, they did not use the exact same words; but, their sentiments were apparent. Indeed, this was their primary reason for holding the “protest”. They said, Congress ministers who are supporting the amendment of Section 377, and thereby “decriminalising homosexuality”, should think twice about it, given the 2014 General Elections are only a few months away. There was also a vague, and snide, speculation over Rahul Gandhi’s (prolonged) bachelorhood, and the Congress’ desire to amend the said Section. Jamaat’s criticism of the Congress, thus, was an implicit projection of their support for the BJP (as if the presence of the sadhu was not enough)—whose president, Rajnath Singh, “welcomed the Supreme Court verdict”, making their stance on homosexuality quite clear.

Jamaat-e-Islami Hind’s intolerance of homosexuality, and its alignment with the Hindutva Right on this, therefore, is much less a coincidence, than it is an indication of a condition that gives them power and legitimacy in the dominant patriarchal nature of politics in India. This kind of political machismo and parochialism aims to ’emasculate’^* a certain section of the population, and is perhaps the most prevalent form of power-mongering in Indian politics—the MNS’ tirade against the “north Indian migrant”; Shri Ram Sene’s and the VHP’s assaults on women in pubs and public spaces; the violence directed on individuals by the Khap Panchayats in the form of “honour killings”; and, now, this renewed persecution of homosexuality. These are, all of them, indicative of a masculine politics of domination in a system of the patriarchal moral-political economy. Patriarchy, more than being a redundant concept, is widespread in contemporary society, institutions, and politics in renewed and pervasive forms. It functions on the subordination and persecution of sexualities (and other caste, religious etc. identities), and aims to punish the transgression of patriarchal norms.

Moreover, what I found particularly infuriating was one speaker’s reference to Ambedkar, and how, he added, the constitution must “prevent homosexuality from spreading”. As an admirer of Ambedkar, this statement was offensive to me personally, and it also undermined and insulted Ambedkar’s legacy, and all that he stood for. Ambedkar was a revolutionary—if not the most revolutionary—thinker of 20^th century India. Besides his struggles against Brahmanical hegemony, it was Ambedkar’s Hindu Code Bill that not only challenged Brahmanical patriarchy, but also gave civil liberties to Hindu women, such as rights over property, divorce, and so forth (see Sharmila Rege’s Against the Madness of Manu, Navyana, 2013, pp. 204-243). As with the championing for the rights of marginalised communities, the legacy of Ambedkarite political thought underscores the contemporary struggles against the homophobia and sexism of (patriarchal) organisations like Jamaat-e-Islami Hind, and the Hindutva Right-wing. Homosexuality—as with giving property rights to women—is precisely the target of such masculine politics of domination, because it deeply unsettles the notion of power that comes to be defined in terms of, and gains privilege from, a hegemonic masculinity.

By the end of the “protest”, I wanted to speak out, and question their claims.

But, to be really honest, I could not take that suffocating and venomous atmosphere anymore. I left. And then, I Tweeted this whole incident—a pointless exercise, really. Not entirely because I failed to say this to the JIH “protestors”; but because they—like other organisations are trying to assert a patriarchal moral superiority—did not possess the acumen or sophistication to engage in any kind of debate, especially one that would undermine their masculine imagery. Their attack on homosexuals is an empty exercise to gain masculine capital in a patriarchal moral-political economy. To conclude, therefore, Jamaat’s “protest” was no more than a self-congratulatory exercise; a desperate bid to keep itself—and its sense of morality and patriarchy—relevant in a charged political scenario.

This post first appeared in the secular humanist website, Nirmukta.org, under the title ‘Jamaat-e-Islami Hind’s Homophobia.’ I am thankful to the editors for their feedback on the post, and for publishing it on their platform. You can read the original post here.

Notes

^* The term “emasculation” is used here very specifically. In case of analysing violence against homosexuals, and especially gay men, it is important to see how entrenched patriarchal and homophobic attitudes work insidiously to deny them a “gay” masculinity—because, that would mean the constitution of a masculinity outside of the hegemonic and patriarchal moral-political context. ‘Masculinity’ is a reified category precisely because it is such reification that gives it power in certain contexts. Thus, something as ubiquitous as using the term “gay” or “faggot” as an insult, seeks to undermine (and, in more serious cases, deny) masculinity to even (presumably) straight men, until they conform to the notion of hegemonic masculine identity. I have explained this in detail in an academic research paper on masculinity in the critically acclaimed TV show, The Wire. Access it here.

Thoughts on Section 377: Against the absurdity that is “against the order of nature”

I

There’s a line from the movie Philadelphia that I recollect every time I’ve discussed homosexuality, the AIDS epidemic, legality and so on. In the movie, as those who’ve seen it are aware, there’s a scene in the courtroom where Denzel Washington, in his cocksure, charismatic charm, says:

“Everybody’s thinking about sexual orientation, sexual preference...whatever you want to call it. Who does what to whom and how they do it. So let's get it out in the open. Let's get it out of the closet. Because this case is not just about AIDS, is it? So let's talk about what this case is really all about: The general public's hatred, our loathing...our fear of homosexuals.”

On the 11^th of December, 2013, the Supreme Court of India “set aside” a landmark judgement of the Delhi High Court pertaining to Section 377 of the Indian Penal Code. The Delhi HC verdict, which had effectively decriminalized consensual same-sex relations among adults covered under Section 377 of the IPC (effectively: homosexuality; read the full verdict here), was thus rendered unconstitutional by the Supreme Court. The assumption, therefore, is that those who engage in sex as stipulated in Section 377 can be tried under it (the description is given below). Section 377 was enacted by Lord Macaulay in 1860, and it states:

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.

Explanation:  Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.

The Delhi High Court’s judgement, in decriminalizing consensual same-sex relations, thus, was truly bold and revolutionary; and it is pertinent to quote its verdict at length:

 “130. If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of ‘inclusiveness’. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society nurtured over several generations. The inclusiveness…is manifest in recognising a role in society for everyone. Those perceived by the majority as ‘deviants’ or ‘different’ are not on that score excluded or ostracised.”

“131. Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination…It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.”

“132. We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution…[and] by ‘adult’ we mean everyone who is over 18 years of age and above.”

It added that the provisions of Section 377 continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors (those below 18 years of age) as they “would be presumed to not be able to consent to a sexual act.” This clarification, the High Court held, will hold until Parliament chooses to amend the law, and enact the recommendation of the 172nd Law Commission Report which sought to decriminalize homosexuality [see Section 1.2.1.Part I, (3)].

The two-member bench of the Supreme Court, however, ruled that: “Section 377 IPC does not suffer from the vice of unconstitutionality [and]…that the said section [377] does not suffer from constitutional infirmity.” It thus concludes that declaration made by the Division Bench of the High court is “legally unsustainable”, and puts the ball firmly in the legislature’s [Parliament’s] court, stating: “Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same.”

It further argues that “even after 60 years of independence, Parliament has not thought it proper to delete or amend Section”, the section, therefore, remains valid. The Additional Solicitor General, P.P. Malhotra, in an affidavit by the Ministry of Home Affairs, which:

“…had opposed decriminalisation of homosexuality and…recommended retention of Section 377 IPC because the societal disapproval thereof was very strong. [And] that the legislature, which represents the will of the people, has decided not to delete and it is not for the [Delhi High] Court to import the extra-ordinary moral values and thrust the same upon the society”

It must, here, be remembered that the Delhi High Court decriminalized homosexuality specifically within the Section 377, upholding it in cases of sexual assault – against women, children and men. However, this ‘severability’ is something which the Supreme Court didn’t agree with (read the full judgement here).

II

Of course, in light of the Supreme Court’s judgement, Denzel Washington’s quote from Philadelphia is exceedingly significant; especially since many have dubbed the Supreme Court’s ruling as “procedural homophobia”. Others, too, have criticised it for being “regressive” and taking us back to the 19^th century.

My criticisms of the Supreme Court judgement, however, are different: they are concerned with the judgement being situated in the larger discourse of what I’ve argued is the patriarchal moral-political economy. Although the Supreme Court’s concern is, largely, constitutional and legal, constitutionality is not a textual problem; it’s also a socio-political one. The Delhi High Court verdict was revolutionary precisely because it helped a social group articulate its political and social rights – and, that this social group is not necessarily a “sexual minority”. My other concern is that there are several logical fallacies riddled in the judgement, through which, the Supreme Court effectively sanitizes and, thus, absolves itself of this responsibility from the larger political movement of gender rights.

I shall elaborate on these arguments throughout the course of this essay – and its follow up.

The Supreme Court ruling which reinstates Section 377 of the Indian Penal Code, and thereby criminalizes “voluntary” same-sex relations between consenting adults is, to say the very least, regressive. Now, I use the term ‘regressive’ in a very specific way: not in terms of the judico-moral discourse of human rights, or anything, but especially as huge setback to:

(a) The consistent work being done by organisations in HIV/AIDS outreach activities, especially among what is called ‘MSM’ (men who have sex with men), such as the petitioners, Naz Foundation; and, (b) The vocal LGBT community, and other allied organisations and social groups, like transgender communities, hijras, and so forth, who suffer from police brutality, irrespective of the question of law, who are equal stakeholders in this struggle.

The Supreme Court verdict also, apart from these specific concerns, seriously undermines the women’s movement, and the question of gender rights and equality, when it states that:

“In its anxiety to protect the so-called rights of LGBT persons…the [Delhi] High Court has extensively relied upon the judgments of other jurisdictions….we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.”

This is, perhaps, one of the most regressive points in the entirety of the 98-page document – “so-called rights”? Would the Supreme Court say that rights of women, Dalits, religious and linguistic minorities are “so-called” rights? This violates the entire legacy of Feminist, Dalit and other politics – and of groups, much like the LGBT community, who have invested their faith in the judiciary; and it is this hope which has been betrayed. My argument, thus, is that the Supreme Court bench fails to situate the Delhi HC’s verdict in the broader context of the gender rights; subsequently, it betrays the spirit of the makers of the Constitution – chiefly, that of B.R. Ambedkar – who sought to include marginalised sections of the population under the protection proffered by the Constitution, and were given respective rights. This becomes more baffling, seeing that the bench observed: “…in last more than 150 years less than 200 persons have been prosecuted…for committing offence under Section 377 IPC…”, there is nothing inherently unconstitutional in the law itself (42; p. 83); and the precedent is on the Legislature to repeal/amend the section (56.; pp.97-98).

I will, however, keep the above problems on the legislature, and the state, in the follow up post. In this essay, I attempt to put the Supreme Court’s logic to the test, especially on the concept which of “against the order of nature”, which is a predominant theme in the court's judgement. The conceptual clarity that I seek to proffer on this condition is embedded in the whole discourse surrounding Section 377, which is, as Washington puts it, “our fear of homosexuals”. 

III

Firstly, the cases the judgement cites, wherein Section 377 IPC has been used to prosecute offences, were indeed brutal cases (pp. 69-70). There’s no doubt about that: women, children, and even other men can be, and are, victims of sexual assaults. But, a closer reading of these verdicts reveals that the offence is not so much against the bodily integrity of the victim, as it is against the “order of nature”. 

[Note: the text below contains some amount of graphic details. Reader’s discretion is advised].

For instance, in the Khanu v. Emperor AIR 1925 Sind 286 (p. 69), wherein the accused is said to “be guilty of having committed the sin of Gomorrah coitus per os with a certain little child”, the case reads:

“…Is the act here committed one of carnal intercourse? If so, it is clearly against the order of nature, because the natural object of carnal intercourse is that there should be the possibility of conception of human beings which in the case of coitus per os is impossible.”

Further to it, in the Lohana Vasantlal Devchand v. The State AIR 1968 Guj 252 (p. 70), the accused had sexually assaulted the victim boy, by subjecting him to anal and oral sex:

“The question that arose for consideration therein was as to whether the insertion of the male organ by the second accused into the orifice of the mouth of the boy amounted to an offense under Section 377 IPC.”

This verdict, based on a definition of “reciprocity” – “the enveloping of a visiting member by the visited organism” – which intercourse connotes, therefore was that “the act in question amounted to an offense punishable under Section 377.” The verdict cites other cases – one in which a boy was sexually assaulted and murdered, and the other where oral sex was forced upon a six year old girl – and in all of them, the prerogative was to establish is the offence “was against the order of nature”.

In all cases cited, it is sufficient to say that very grave and violent crimes were committed against children. And, by all means, it is the prerogative of the courts to ensure that the accused are given maximum punishment under the valid laws. But, does that validate the archaic definitions embedded in Section 377 – such as ‘reciprocity’, ‘orifice’, and ‘order of nature’? Clearly, from these cases, it would appear that the courts were more interesting in defining what exactly constitutes offence “against the order of nature” – there is no explicit mention of the crime violating the bodily integrity of the victim in question. Even in its own conclusion, the Supreme Court bench observes that, despite the idea of sexual intercourse meant for procreation being outdated, at the same time (p. 71):

“…it could be said without any hesitation of contradiction that the orifice of mouth is not, according to nature, meant for sexual or carnal intercourse. Viewing from that aspect, it could be said that this act of putting a male-organ in the mouth of a victim for the purposes of satisfying sexual appetite would be an act of carnal intercourse against the order of nature.”

Thus, even sexual stimulation gained by “intercourse between the thighs” is against the order of nature (p. 73). In other words, forced oral or anal sex (viz. sexual assault) is not a grave crime insofar as we would seek to define it in terms of physically harming the bodily and mental integrity or personhood of the victim; it is a crime because even if it is consensual, it is against the order of nature.

The judgement, however, does concede that the cases refer “to non-consensual, coercive situations…and the keenness of the court in bringing about justice cannot be discounted while analysing the manner in which the section has been interpreted.” However, this justification is difficult to fathom when the court holds that (p. 77):

“Section 377 IPC does not criminalize a particular people or identity or orientation. It merely identifies certain acts which, if committed could constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation.”

In an absence of cases where consent can be established, the Court functions merely on the presumption that there is a form of sexual intercourse that is normal, and not against the “order of nature”, and sexual activity that contravenes this normalcy is, by law, illegal and punishable. In other words, as long as people who identify as homosexuals do not engage in sex, they cannot be criminalized – the absence of proof (of consensual same-sex), constitutes, for the judgement, the proof of its absence. The absurdity of “the order of nature” is foundation stone of the patriarchal moral-political economy. One of the processes through which the moral-political economy sustains unequal relations between and within genders, is by its definition of the dominant (hegemonic) form of masculinity. Furthermore, as Michel Foucault argues in The History of Sexuality, this “new persecution of peripheral sexualities entailed an incorporation of perversions and a new specification of individuals…sodomy was a category of forbidden acts; their perpetrator was nothing more than the juridical subject of them” (1978: pp. 42-43, tr. Robert Hurley, New York: Pantheon Books).

IV

There is, however, some truth to the arguments made by the counsel – who represented the Hindu, Christian and Muslim organisations, and the Delhi Child Rights Commission  – opposing the Delhi High Court verdict, saying that Section 377 is gender neutral, and “covers voluntary acts of carnal intercourse against the order of nature irrespective of the gender of the persons committing the act”  (p. 22). Further:

“…[and that in] carnal intercourse between man and man, man and woman, and woman and woman…[there is] no constitutional right that vests in a person to indulge in an activity which has the propensity to cause harm and any act which has the capacity to cause harm to others cannot be validated.”

Thus, going by the above logic, Section 377 does not criminalize only homosexuals – it criminalizes any individual who has it in them to indulge in desire, and pleasure outside of heteronormative norms – thus, rendering people as a “new specification of individuals”, as Foucault put it. It rests on a fallacious concern for human dignity, safety and morality; but is silent on the fact that a great deal of violence is perpetrated on women when they are raped, in many cases, by their own husbands, in accordance “to the order of nature” – which, ironically, still isn’t a crime in the law books (more on that later). Perhaps, then, it is important for those in the gender rights movement to articulate our unregulated right to fuck – not just the “miniscule population” of gays, lesbians, and transgender people, but even straight, heterosexuals, and – who knows, maybe even “thigh-fetishists”?

The arguments concerning “against the order of nature”, thus, firmly seek to entrench patriarchal structures. Referring back to the notion of the moral-political economy, it is not sufficient for it to merely define the dominant category, or signifier, of the masculine; there is a concerted need to define the intimacy of subjects so as constitute the masculine in a sexualised process. The “order of nature” – and this conclusion, I concede, comes rather late – is this the order of the patriarchal moral-political economy.

V

In the next post, I shall continue my criticisms of the Supreme Court judgement on Section 377 of the IPC, by situating them in the broad context of gender identities, the gender rights movement, and present a critique of the Parliament . Therein, I will attempt to unravel the contradictions of the Supreme Court’s judgement, by arguing that reinstating Section 377 points out the fallacies of the Indian State’s commitment to preserving the rights of marginal groups – both, women, and the LGBT community, have been at the receiving end of the Indian State’s apathy; and by suggesting that the very same state legislate on Section 377, the Supreme Court’s verdict is a historical blunder, and fails its own legacy. Moreover, the clarity I argued for in the case against “against the order of nature”, is pertinent in the follow up post, where I shall situate my argument, alongside the critiques of the state, and structures of legality, in what could be called a “politics of desire”.