New Delhi, July 05: Don’t put the entire blame on the Victorian mindset of Lord Macaulay for the harassment and humiliation heaped on Indian homosexuals for a century and a half.
Section 377 of the Indian Penal Code, which Macaulay introduced in 1860, is on the face of it rather innocuous, nowhere referring to gays or any class of people with a particular sexual inclination.
Its biggest faults, however, were its loose wording and its grand sweep, which bundled a range of disparate sexual acts and attitudes together under the nebulous concept of unnatural sex.
The vague phrasing gave enormous powers of interpretation to the police, who must accept a heavy share of the blame for gay persecution. And the bundling of offences allowed some latter-day court judgments to make matters worse for consenting, adult homosexuals in cases that had little to do with them.
Section 377 only says that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished” with between 10 years in jail and a life term.
Macaulay’s aim, legal experts say, was to deal with male rape and bestiality. But social prejudice later led it to be interpreted as criminalising all sex acts except standard heterosexual ones.
The gay community was fair game for the police. However, the police also used the law to book those engaged in non-vaginal acts with minors — vaginal penetration was covered by rape laws but no such provision existed to deal with child molesters and abusers. That was a strong argument for retaining the law.
For gay couples, the persecution mainly meant detention, forced sex and payment of hush money — it was the child abuse cases that mainly reached the courts.
But some judgments in these cases — which specified oral and anal sex as falling under “carnal intercourse against the order of nature” — made matters worse for homosexuals.
Also, some courts hanged the label of sexual perversity to such sex — earlier defined as non-procreative — thus adding a further layer of moral condemnation.
Yesterday’s Delhi High Court order decriminalising adult, consensual and private gay sex was therefore, to a large extent, undoing the damage caused by earlier judgments.
Besides, although no one in this country could, under Article 15, be discriminated against on the ground of sex — till yesterday, sex was widely interpreted as gender. The high court clarified that “sex” would include sexual preference or orientation too.
