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The law is an ass

December 14, 2013 15:24 IST

Section 377 is a colonial relic of a law that makes it criminal to have "carnal intercourse against the order of nature," says Mitali Saran  

Like many other people, I often fantasise about living in a different age. What must it have been like to be in Shakespearean England, when sewage ran in the streets and bathing was a special occasion? What must it have been like to be a Mughal princess, with emerald rings so heavy you'd need a whole other attendant to support your hand?

What must it have been like to wander around Pompei as the mountain began to judder and spew? What must it have been like to insert a penis into the nostril of a buffalo in 1925?

Wait, what was that?

A funny thing happened this week, and by 'funny' I mean 'say it isn't so' -- India discovered time travel! We're back in Victorian England, except with the Internet. This is very awesome because thanks to the internet, we can tell that Victorian England itself has moved on into a world where you can have consensual sex with whomever you like, in whatever position you like, without landing yourself in jail. We, the people of India, hope that this path breaking evolution of sexual mores lies in our future too.

Section 377 is a colonial relic of a law that makes it criminal to have "carnal intercourse against the order of nature". Nobody really knows what "against the course of nature" is, but the thrust of it, so to speak, is anything not involving a penis entering a vagina. The Law Commission recommended deleting Section 377 almost 13 years ago, and the high court rightly read it down in 2009. Finally, thought India, we're beginning to stand by the meaning of the word 'freedom'.

But where there's sexual freedom, can a bunch of insecure patriarchs be far behind? A collection of Hindu, Muslim and Christian petitioners, and other random self-appointed custodians of "Indian culture" is all it has taken for no less than the Supreme Court to decide to reinstate Section 377 on the grounds that it is not unconstitutional. Judge Singhvi, who delivered this regressive judgement as a professional swansong, had suchlike things to say...:

"…[C]arnal intercourse was criminalised because such acts have the tendency to lead to unmanliness and lead to persons not being useful in society."

And: "[I]t could be said without any hesitation of contradiction that the orifice of mouth is not, according to nature, meant for sexual or carnal intercourse.

And: "…[T]heso-called rights of LGBT persons".

Here's the interesting part of being back in Victorian England, folks: It's not the Supreme Court, or gay people, that have made the trip. It's every Indian, gay or straight, male or female, rich or poor, Brahmin or Dalit, old or young... If you give or receive oral sex, you're a criminal. Get ready to exchange your thrilling leather handcuffs for a real pair. And hello, singles and sleeping-alone-tonights, if you were thinking of flirting with yourself before your eyes close, do remember that blindness and hairy palms are even less enjoyable in jail.

It appears that the Supreme Court has preferred to do a mincing little dance around the issue and pass the buck on to Parliament. Nobody has forgotten that our Parliamentarians didn't delete Section 377 when they could have after 2009. However, India's lawmakers can redeem themselves by fixing this gargantuan, well, cock-up.

Meanwhile, the Supreme Court should rest assured that the people of India gay and straight, are pretty much going to do whatever their sexuality dictates, and nobody is going to take this judgement lying down in the missionary position. The long arm of the law inserting itself into the bedrooms of the unwashed asses is the only thing against the order of nature.

Mitali Saran is a Delhi-based writer

Mitali Saran