In July 2009, the Delhi High Court ruled that Section 377
could no longer be used to criminalize consensual sex between adult men and
women. The Section technically covers heterosexual non-reproductive sex too,
but in practice it has managed to demonize anal sex and influence the public
misperception of it as being an exclusively gay male act. The High Court’s
reading down of the law was thus an extremely far-sighted move.
However, despite the welcome judgment, the Delhi High Court
fell into two traps. First, both petitioner and defendant assumed that sexual
acts automatically conduce to an identity — “sexual orientation (is) a deeply
held, core part of the identities of individuals” (7-8). But so many sexual
acts — oral sex, anal sex, masturbation — mark potentially all of us, homo and
hetero alike, as being “against the order of nature”. So how do we make the
case for sexual identity on the basis of acts?
The second trap concerns the status of Indian morality and
the state of Indian society. One side argued that homosexuality is a ‘foreign’
concept while the other side suggested that homosexuality is an ‘Indian’
concept. Both positions adhere to a static understanding of identity rather
than questioning the need for such specificity. Whether one says homosexuality
‘is’ or ‘is not’ Indian, we are abiding by a script that assumes sexuality can
be culturally and geographically specified.
Up to this point, the rhetoric employed by both sides is
identical. But then something interesting happens. In support of its decision,
the Delhi High Court judgment adduces the following: “(I)n 1860 when we got the
Indian Penal Code, which was drafted by Lord Macaulay, they inserted s.377 in
the Indian Penal Code, which brought in the concept of ‘sexual offences against
the order of nature’. Now in India we didn’t have this concept of something
being ‘against the order of nature’…. homosexuality as such is not defined in
the Indian Penal Code, and it will be a matter of great argument whether it is
‘against the order of nature’” (70-1).
Despite the familiar narrative of homosexuality being or not
being ‘Indian’, the judgment states, quite startlingly, that homosexuality as
such is nowhere defined in the Indian Penal Code. Nor, it adds, is a category
of sexuality as being ‘against the order of nature’ available in India before
the enactment of the IPC. The import of this assertion is that the law created
sexual identity where it did not exist before, and even then, refused to name
it. What the High Court judges thus had for consideration before them was a
mode of conceptualizing identity that is at the core of the matter being
debated.
This discussion about identity is one of the many things
missing from the recent Supreme Court verdict overturning the High Court
judgment. The Supreme Court ruled that certain (unspecified and unspecifiable)
acts of carnal intercourse are indeed ‘against the order of nature’. Thus the
judgment suggested that there are acts of carnal intercourse that are not
against the order of nature, even though it did not list what these acts might
be. ‘The order of nature’ here means nothing — it is too broad and
under-examined a term since everyone who has sex has non-procreative sex
‘against the order of nature’ for large parts of their sexual lives; if they
did not, our population problem would be a million times worse than it is
today. In fact, sexual identity is the furthest thing from ‘nature’ (what is
nature in the first place? and how and when did it adjudicate on sexual
morality?); we all have desires that tug in different directions and we all
have different faces and personas that assume ‘our’ identity at different
moments. Sexual identity is a ruse by which the law attempts to put us into
boxes that cannot contain our desires. If only the Supreme Court judges had
read the story of the woman who marries another woman while being married to a
man, they would have understood that a single sexual identity is impossible. If
only they had understood that they cannot understand, let alone legislate, how
desire works, their verdict would have been very different.
This is what the Delhi High Court pointed out. Not that
Indians are or are not gay, but that the opposition is a false one. To be a
lesbian is to presume a category, it is to assume an identity. We have always
been lesbians because our desires run against the order of nature; we have
never been lesbians because we cannot be categorized by desire. How can the
Supreme Court legislate for that?
Madhavi Menon is Professor of English at Ashoka University,
New Delhi, and the author of Wanton Words: Rhetoric and Sexuality in the
English Renaissance.
Source: The Hindu
