On the Anniversary of 377

It’s that Mumbai Mirror again, today’s edition, July 2, 2011, but then I shouldn’t gripe about wrong information going out to the world, after all don’t reporters just report. At least that’s what they’re supposed to do. Not put words into the mouths of those who speak through their paper. In this case I’m referring to a certain Ma Faiza, no relation to Ma Baker, quoted on page 40, though the photograph the article carried would say otherwise. I almost want to put my hands up in the air and hand over all my money.

And then I read the article titled ‘Lets drink to queer’, and now I quote:

“Just because the law has changed it doesn’t mean people’s mindset has changed.”

Okay that wasn’t me speaking; my English isn’t quite so bad. I’m just quoting Ma Baker…sorry Faiza, as she refers to Section 377 of the Indian Penal Code. But then I stop dead in my tracks and ask myself if I’ve been malingering, idling away my time at work and missed something while I was at it. After all I am supposed to be a lawyer. But I haven’t, malingered that is. I just took two weeks off to go meditating. I’ve been working quite diligently otherwise, a copy of the Criminal Manual (Major Acts) sits right in front of me, and it’s a fairly recent edition. I flip it open to the relevant page and it stares at me… Section 377 Unnatural Offences. It looks the same as when I studied it.

I shut the book.

I met a boy on the train to Igatpuri, my co-passenger. The Indian Railways needs to be sued. They sell tickets on-line and you book a month in advance so that you get your preference of seat, and you opt for the window and you get it. And then the day cometh and you board the train at 6.00am, sleepy and without your breakfast, and guess what, someone reupholstered the seats and changed the numbering, so now it’s written in some blue marker or chalk on the walls (read: sides of bogie above your seat) and yes while the relevant change has reached the ticketing counter guys who issue regular tickets, no one bothered to update the online ticketing system. So while my e-ticket says 36W, W for window apparently, seat number 35 is also W on the regular ticket that my co-passenger brandishes. So I smile my cheeriest smile and ask him if I can keep sitting at the window, after all my tickets a W too, but no ordinary woman can stand up to a queen. He stomps his foot, pouts, then looks me squarely in the eye and in an accent that’s distinctly Maharashtrian-German tinged with a bit of south London says that he booked a window seat too and wants to look out of the window. After all I’m reading a book. Couldn’t argue with that, so I smile and moved over and fix my eyes onto page 10 of Kabul Disco, squinting in the poor light of the compartment at the small print, and silently curse my aging eyes that refuse to co-operate with the optometrist enough to get me a number.

“So what’s that you’re reading” he asks me five minutes later, after mumbling something to someone over the phone and fishing out two magazines, one with Baba Ramdev on the cover and the other with Ekta Kapoor.

“Not looking out of the window are you?” I retort… and he shrugs.

“It’s pouring outside, can’t see much” he responds, launching into a monologue on Ramdev and Anna Hazare and fasting and corruption… and how everyone is so dishonest in India, and how we have a bloody Italian ruling us. It’s not done he says, the British should never have left.

He’s just going to hold on to both his Indian and British passports for a little while longer.

Ehhh?

Well, why should I care? I mean if you can have ten passports and get away with it, good for you. 

He tells me he works with the High Commission. "German" he says… Hey! You just said you have a British passport. Oh, never mind…

And then he wants to know what I do.

“Ride in trains talking to pesky queens” I’m tempted to retort, but then I stop myself. I’m headed to meditate… right speech, right thought…

Right!

“I’m a lawyer”.

“Aah” he says, “So what do you think of Section…”

“377?” I ask and he nods.

“Yeah” he says, “I’m glad it’s gone… such an archaic law.”

“Gone where?” I ask, and then he tells me about the Delhi High Court judgement, sounding rather jubilant. “We won” he said finally, “but then a policeman was harassing me and my friend at Powai last evening, and he isn’t even gay, that’s illegal now, isn’t it?” He sounds so hopeful, but I have to tell him that while demanding a bribe is illegal, so is ‘carnal intercourse against the order of nature’, as Section 377 stands worded. Nothing has really changed, and except for the fact that the July 2, 2009 Delhi High Court judgement read down the section, effectively decriminalizing it, it still stands in the statute books, till it is repealed or amended to take consenting adults out of its purview. He looked shocked.

“Do you mean to tell me that I can still be arrested and charged under section 377 he asked” and I replied in the affirmative. The law still stands, it hasn’t changed.

Section 377, Unnatural offences, still reads as:

“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 offence described in this section.”

So while it is true that Justices A.P.Shah and S. Muralidhar in their landmark judgement did state that, “We declare that Section 377 IPC, insofar it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution”, the law still remains a part of the Indian Penal Code, and is still a cognizable, non-bailable, non-compoundable offence, punishable with imprisonment of 10 years to life and with a fine, though there are very few or almost no convictions recorded in the case of consenting adults in the recent known past. For the sake of the record though, it means that sodomy is still an unnatural offence, and the police can arrest you if they catch you in the act and slap on Section 377, which they often do especially in small towns and sometimes in big cities as well, primarily to extort money or even sexual favours.

“So where does the judgement come in” he asks, and I wonder why no one bothers to educate and inform the public.

“If your case comes up for hearing your advocate can cite the Delhi High Court judgement as precedent in the hope that it will be upheld, and it most likely will if you are in Delhi, but not necessarily so if you are in say, Mumbai” I tell him.

However Section 377 is not just an anti-homosexual provision, and the section does not merely target homosexual men who indulge in anal intercourse but brings within its ambit everything that goes beyond and outside the scope of male to female peno-vaginal intercourse. This means that oral sex too, regardless of whether it is heterosexual or homosexual is basically criminal. 

So despite the Delhi High Court judgement the section still stands until amended or repealed. And it cannot be repealed, unless Section 375, Rape and Section 376, Punishment for Rape, are both amended to bring within their ambit, sodomy against the will of the victim, or without his/her consent, and include all the provisions of those two sections to cover acts that are presently covered by Section 377, excluding acts of consensual intercourse between adults. In my opinion Section 377 should therefore stand, duly amended to exclude the latter.

The matter now lies in appeal before the Supreme Court. But for all those candle-bearers of civil society, namely Baba Ramdev and the religious heads of various denominations dead against legalizing homosexuality there’s common ground at last, a platform on which they can band enmasse against a common enemy to uphold what they perceive as natural and moral. The government too, busy trying to save itself the anti-corruption blushes, has chosen to ignore the issue, hoping that it will die down or perhaps raise its head after they’ve lost the next general election. And my poor train companion will have to wait a little while longer and shell out some more money to every passing cop who tries to harass him with the threat of arrest under this archaic law.

But then he can always call up the High Commission... British or German, and catch the first plane out.