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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