section 377

Karan Johar is right to be cautious about his sexuality – India's gay sex law isn't just about sex

Section 377 may be a law about sexual acts, but it camouflages a more sinister agenda.

Karan Johar has been rumoured to be gay for a long time. Now, in a recent excerpt from a yet-to-be released biography titled An Unsuitable Boy the Bollywood director seems to have just come out.

Except, as Johar notes himself, he hasn’t actually said it: “Everybody knows what my sexual orientation is. I don’t need to scream it out. And if I need to spell it out, I won’t only because I live in a country where I could possibly be jailed for saying this. Which is why I Karan Johar will not say the three words that possibly everybody knows about me in any case.”

Johar has got flak for this – and not just from the homophobes. He has been criticised by LGBT activists for being unwilling to make an explicit statement at a time when gays and lesbians across the country are increasingly open about their orientation.

If they can be open without fearing prosecution, why can’t he? At a time when it seems increasingly possible to lead a fairly open life as a gay or lesbian, to write about LGBT subjects, make films with LGBT themes, appear on TV quite open about your sexuality, why is Johar reminding us that it is still illegal under Section 377 of the Indian Penal Code?

Sinister agenda

Because he is correct, not just about the law and how it appears to operate, but about how it is meant to operate. Section 377 may be a law about sexual acts, but it camouflages a more sinister agenda. A brief look at the history of the law tells a story of far wider significance than a mere sexual act

It took Lord Macaulay (the man who gave us our Penal Code) over 30 years, from 1825-1860 to fine tune the offence of sodomy. Section 377’s predecessor in Macaulay’s first draft of the Penal Code in 1837 was clause 361, which defined a severe punishment for “touching another for the purpose of unnatural lust”. Macaulay, who never married himself, wrote that he wanted “as little as possible should be said” about this issue, abhorring even the idea of any debate or discussion on this “heinous crime”.

This squeamishness may be why we finally ended up with a more cumbersome offence which punishes “carnal intercourse against the order of nature” between men, and also between a man and a woman. Even though neither “carnal”, “intercourse” or the word “nature” was defined, in time they came to stand for any sexual activity that involved ‘penetration’ without ‘procreation’.

But Section 377 always was, and continues to be, a smokescreen law. Its real intention was never to get inside bedrooms of people to catch them having sex, which is both impractical and to an extent not easily possible. The goal behind Section 377 was to create an environment of fear and persecution among people who are likely to partake in “sexual activities against the order of nature”.

This is the link between the archaic wording of the law and the reality of LGBT individuals today. They might not think the crude assumption of a sexual act extends to covering their lives as people whose sexuality is a natural part of themselves, as likely to be criminalised as their height or which hand they use to write. But under the law, as it has been interpreted, the possibility definitely exist.

Queen Empress v. Khairati

This was made clear in the 1884 case of Queen Empress v. Khairati, where a hijra was picked up by the police while dancing in a ceremony and arrested under Section 377. According to the case a “eunuch”, was kept under constant “supervision” by the police and arrested upon being “found singing dressed as a woman”.

There was no record of any actual sexual act taking place, but the prosecution argued that incriminating evidence existed: on examination – the record does not state how, or whether consent was involved – the hijra was found to have an anus distorted into the shape of a trumpet. This, the prosecution argued, was the mark of a habitual sodomite, who had committed the offence at “an unknown place, at an unknown time, with an unknown person”.

The Khairati case established that under the law there was a presumption of sex which could make all LGBT people vulnerable, even in the absence of any sexual act. That precedent doesn’t just hold today, but was expanded and made even more explicit in other judgments over the years.

In fact, far from being the almost never used law that it is often assumed to be, the affair of Indian courts with Section 377 that began with Khairati has a very long and interesting life. Courts both before and after Independence have been devoted to finding ways of expanding the scope of Section 377.

Never satisfied with the narrow vision of “gay sex” alone, which could mean anal sex, in the much cited case of Khanu v Emperor (1925) they added oral sex to its scope. The courts used two essential parameters under S 377: (a) Existence of penetrative intercourse with an orifice, and (b) Impossibility of conception, thus against the order of nature.

To determine whether there could have been penetration, the judges defined intercourse as, “a temporary visitation to one organism by another... The primary object of the visiting organisation is to obtain euphoria by means of a detent of the nerves consequent on the sexual crisis”.

Thus as long as there is an orifice (in this instance, the mouth) which can envelop the “penis” and provide sexual climax, it qualifies as carnal intercourse. This logic was extended to also include acts of masturbation between two men under the scope of Section 377, bringing us closer to the earlier definition of ‘touching’ contemplated by Macaulay.

The case of Noshirwan vs Emperor (1934) makes it clear how the law was used to stigmatise. In this case a neighbour forcibly committed two young adult men to the police station for sodomy. The two accused were released and their conviction set aside as the act of the sodomy was never completed, although the judge did reprimand one of the men, Ratansi, as a “despicable” specimen of humanity for being addicted to the “vice of a catamite” on his own admission. As with Khairati we see the association of the person, a habitual sodomite or a catamite, with the act, rather than the act in isolation.

Thus a better way to understand the law in the present times, if we must stick to a sexual definition, is that it proscribes any kind of same sex intimacy, no matter how it expresses itself. In the year 2007, an English tourist called Desmond Hope was caught kissing another man behind a church in Colva, Goa, and arrested under 377, under a false charge of indulging in “gay sex”.

The police allegedly asked Hope for a hefty bribe of Rs.50,000 – a confirmation of how the most effective use of the law has actually been in enabling blackmail. When Hope refused the police booked him in jail, where he spent over 30 days – under both judicial and media scrutiny – before finally being acquitted.

Hope’s account is an extreme example of the kind of harassment same-sex couples have faced regularly across the country under the garb of Section 377. While, most of us escape by paying a bribe, Hope’s defiance only landed him in actual prison time.

False charges

An even more egregious case was that of Arif Jafar and three other employees of Naz International, a Lucknow-based HIV-prevention organisation. In 2001 they were arrested under false charges of Section 377 and kept in jail for over 45 days before being acquitted. No sexual act was said to have taken place. The only evidence deemed necessary for the police to charge them with sodomy was the material on safe sex practices that they possessed to disseminate against the spread of HIV. This got them charged with running “sex rackets” and “promoting homosexuality”.

Both Jafar and Desmond were finally acquitted, yet they ended up spending more than 30 days in prison. Their only crime was that they were gay. As far as the police was concerned, they applied the law correctly, to its true meaning, to arrest gay men for being gay.

Section 377 was always about the individual, which in the 19th century was the “abhorrent unnamed Khairati”, in early mid-20th century the “sexually depraved” and now in modern times stands proudly as the gay man. The fact that people aren’t being arrested doesn’t mean that they can’t be, or that they can’t be threatened with the harassment of the charge.

Johar understands this clearly when he writes, “The reason I don’t say it out aloud is simply that I don’t want to be dealing with the FIRs. I’m very sorry. I have a job, I have a commitment to my company, to my people who work for me; there are over a hundred people that I’m answerable to. I’m not going to sit in the courts because of ridiculous, completely bigoted individuals who have no education, no intelligence, who go into some kind of rapture for publicity.”

LGBT activists aren’t wrong when they note that so many brave people are coming out and leading their lives openly in India. But they should not in true conscience say that Johar is wrong either. The presumption of being gay, and of this being a criminal offence, is still very much alive and menacing in India today.

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From catching Goan dances in Lisbon to sampling langar in Munich

A guide to the surprising Indian connect in Lisbon and Munich.

For several decades, a trip to Europe simply meant a visit to London, Paris and the Alps of Switzerland. Indians today, though, are looking beyond the tried and tested destinations and making an attempt to explore the rest of Europe as well. A more integrated global economy, moreover, has resulted in a more widespread Indian diaspora. Indeed, if you know where to look, you’ll find traces of Indian culture even in some unlikely cities. Lisbon and Munich are good cities to include in your European sojourn as they both offer compelling reasons to visit, thanks to a vibrant cultural life. Here’s a guide to everything Indian at Lisbon and Munich, when you wish to take a break from all the sight-seeing and bar crawling you’re likely to indulge in.

Lisbon

Lisbon is known as one of the most vibrant cities in Western Europe. On its streets, the ancient and the modern co-exist in effortless harmony. This shows in the fact that the patron saint day festivities every June make way for a summer that celebrates the arts with rock, jazz and fado concerts, theatre performances and art exhibitions taking place around the city. Every two years, Lisbon also hosts the largest Rock festival in the world, Rock in Rio Lisboa, that sees a staggering footfall.

The cultural life of the city has seen a revival of sorts under the current Prime Minister, Antonio Costa. Costa is of Indian origin, and like many other Indian-origin citizens prominent in Portugal’s political, business and entertainment scenes, he exemplifies Lisbon’s deep Indian connect. Starting from Vasco Da Gama’s voyage to India, Lisbon’s historic connection to Goa is well-documented. Its traces can be still be seen on the streets of both to this day.

While the Indian population in Lisbon is largely integrated with the local population, a few diaspora groups are trying to keep their cultural roots alive. Casa de Goa, formed in the ‘90s, is an association of people of Goans, Damanese and Diuese origins residing in Lisbon. Ekvat (literally meaning ‘roots’ in Konkani) is their art and culture arm that aims to preserve Goan heritage in Portugal. Through all of its almost 30-year-long existence, Ekvat has been presenting traditional Goan dance and music performances in Portugal and internationally.

Be sure to visit the Champlimaud Centre for the Unknown, hailed a masterpiece of contemporary architecture, which was designed by the critically-acclaimed Goan architect Charles Correa. If you pay attention, you can find ancient Indian influences, like cut-out windows and stand-alone pillars. The National Museum of Ancient Art also has on display a collection of intricately-crafted traditional Goan jewellery. At LOSTIn - Esplanada Bar, half of the people can be found lounging about in kurtas and Indian shawls. There’s also a mural of Bal Krishna and a traditional Rajasthani-style door to complete the desi picture. But it’s not just the cultural landmarks that reflect this connection. The integration of Goans in Lisbon is so deep that most households tend to have Goa-inspired textiles and furniture as a part of their home decor, and most families have adapted Goan curries in their cuisine. In the past two decades, the city has seen a surge in the number of non-Goan Indians as well. North Indian delicacies, for example, are readily available and can be found on Zomato, which has a presence in the city.

If you wish to avoid the crowds of the peak tourist season, you can even consider a visit to Lisbon during winter. To plan your trip, check out your travel options here.

Munich

Munich’s biggest draw remains the Oktoberfest – the world’s largest beer festival for which millions of people from around the world converge in this historic city. Apart from the flowing Oktoberfest beer, it also offers a great way to get acquainted with the Bavarian folk culture and sample their traditional foods such as Sauerkraut (red cabbage) and Weißwurst (a white sausage).

If you plan to make the most of the Oktoberfest, along with the Bavarian hospitality you also have access to the services of the Indian diaspora settled in Munich. Though the Indian community in Munich is smaller than in other major European destinations, it does offer enough of a desi connect to satisfy your needs. The ISKCON temple at Munich observes all major rituals and welcomes everyone to their Sunday feasts. It’s not unusual to find Germans, dressed in saris and dhotis, engrossed in the bhajans. The Art of Living centre offers yoga and meditation programmes and discourses on various spiritual topics. The atmosphere at the Gurdwara Sri Guru Nanak Sabha is similarly said to be peaceful and accommodating of people of all faiths. They even organise guided tours for the benefit of the non-Sikhs who are curious to learn more about the religion. Their langar is not to be missed.

There are more options that’ll help make your stay more comfortable. Some Indian grocery stores in the city stock all kinds of Indian spices and condiments. In some, like Asien Bazar, you can even bargain in Hindi! Once or twice a month, Indian film screenings do take place in the cinema halls, but the best way to catch up on developments in Indian cinema is to rent video cassettes and VCDs. Kohinoor sells a wide range of Bollywood VCDs, whereas Kumaras Asean Trades sells Tamil cassettes. The local population of Munich, and indeed most Germans too, are largely enamoured by Bollywood. Workshops on Bollywood dance are quite popular, as are Bollywood-themed events like DJ nights and dance parties.

The most attractive time to visit is during the Oktoberfest, but if you can brave the weather, Munich during Christmas is also a sight to behold. You can book your tickets here.

Thanks to the efforts of the Indian diaspora abroad, even lesser-known European destinations offer a satisfying desi connect to the proud Indian traveller. Lufthansa, which offers connectivity to Lisbon and Munich, caters to its Indian flyers’ priorities and understands how proud they are of their culture. In all its India-bound flights and flights departing from India, flyers can expect a greeting of Namaste by an all-Indian crew, Indian food, and popular Indian in-flight entertainment options, making the airline More Indian than You Think. And as the video shows, India’s culture and hospitality have been internalised by Lufthansa to the extent that they now offer a definitive Indian flying experience.

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This article was produced by the Scroll marketing team on behalf of Lufthansa as part of their More Indian Than You Think initiative and not by the Scroll editorial team.