The travails of homosexuals will continue
despite the Supreme Court striking down Section 377
Hoshang Merchant
Moses saw the Promised Land but died before entering it.” (Bible)
Section 377 is a clause in the Indian Penal Code (IPC) introduced by British historian and politician Thomas Macaulay 185 years ago to control colonized homosexuals’ bodies: "Men may not have sex with men (sodomy) against the order of nature.” For Victorians, heterosexual sex in the missionary position was alone natural. (Poor Macaulay, a bachelor, knew of neither though he dined with a male friend nightly for a lifetime.) The sub-clauses of this section ban pederasty (all sex with minors) and bestiality. Its alarming corollary is that it makes anal sex in marriage punishable against a wife’s complaint. Lesbians are not mentioned (at the request of Queen Victoria who said, "No such creature exists in my realm.” We do not know about Victoria’s sex life as her daughter burnt her diaries).
Thomas Macaulay (l) and Oscar Wilde
The law was introduced in India before it was introduced in England, to show the colonized, in the wake of the Irish poet and playwright Oscar Wilde’s (sodomy) trials, that the White Rulers were no pansies.
The British looked down on Hindu polytheism, the Devadasi culture and so on. The English educated Bengalis were quick to turn Brahmos (anglicized, Christianized Hindus). In South India the dancers were brought out of temples and brothels to sing and dance before middle-class family audiences on a proscenium stage. Wholeheartedly, the Hindia also adopted an anti-homosexual attitude fostered in single sex missionary schools where some educators were pederast pedophiles (as indeed there were in the Vedic gurukula).
After 100 years (1962) this antiquated law was repealed in the UK. India dithered because our law-makers and law-enforcers were all educated in homophobic missionary schools. In fact, many Indians believe homosexuality is a Western import that came with English education and English laws which named and codified the practice in IPC, both being the handiwork of a single individual viz. Macaulay. (Indian languages had no word for homosexuality — "samlingan” is a new translation from the English — as it is a great shame to talk about it. True: If you can’t talk it, you don’t need to name it!)
Ashok Row Kavi started Bombay Dost in 1985. I had just returned from USA where I had been beaten up by Mid-Western University-town sissy-beaters at 21 when I vowed to become a gay activist. My gay friends and I had started a gay group at Purdue University with an elected board; an office in the Students’ Union Building in President Richard Nixon’s America. By the time I returned for a visit in President Ronald Reagan’s America (the 1980s: the ‘Me-Decade’) the office was gone. They couldn’t find five fags to come out publicly at Purdue, a pre-requisite for this campus-organization. Anyway, everyone had become ‘queer’ by then: "A kink in the head and in the bed” was surely allowed to all in the USA. Meanwhile, Bombay was still confusing "homosexual” with "eunuch” (a confusion arising from Burton’s mis-translation of the Kama Sutra).
Kavi breakfasted with President Bill Clinton in the White House. (He is an ex-Vivekananda monk and a Hindutva supporter.) I was stoned by college-going neighborhood boys on my way to work for having written Yaraana (1990), India’s first gay anthology. My University of Hyderabad supported me; so did the local media (NDTV, Hyderabad) and later the international media (Star Asia).
Everyone has forgotten Kavi today except Gautam Bhan, Delhi based gay activist, in The Hindu. I wept to read him. Fifty years is a long time to wait for justice.
Above (from l): Dinshaw, Arnoo, Whabiz, Maharoukh and Hoshang Merchant; (r) at Hoshang and Whabiz’s navjote
Parsis and homosexuality
In Zoroastrianism there is a horror of menstrual pollution (dead matter). So a man is considered "cleaner” than a woman. In modern day Shia Iran homosexuality was practiced before marriage and was a "cleaner” option to prostitution. Khomeini changed all this. Now if you’re caught with a passive partner, the passive man is compulsorily castrated (a crude "sex change”) and his hapless male companion is forced to marry him. Most such castratos commit suicide. This shows a foisting of a heterosexual (binary) paradigm on gay relations.
In India, the Westernized Parsis blindly follow Western prejudice. Not that there are no homosexuals in our community.
Male chauvinism rules: "A man can do anything.” Consequently, shame attends only on the passive partner if outed (or self-outed as a political stance, as is my case). The closet gay fears "out” gays.
I became estranged from Zoroastrianism when I realized that Parsi homosexuals may not enter a Parsi heaven: This could be the patriarchal Mazdayasni religion’s reaction to the Middle Eastern Mother Goddess (Ishtar) who fostered ancient matriarchy and, I imagine, tolerated sexual diversity. The mothers had to be suppressed.
Parsi hypocrisy extends to the homosexuals in our families. This is a trait of all upper-class India. Notable Parsis are "outed” periodically but wealth assures a cover-up.
My father’s male chauvinism translated into a benign neglect of my sex life on his part. I could have used a little love. My mother’s horror stemmed from her rural stereotype of "masculinity.” It also could be that, in my parents’ generation, any masculine trait in a woman or feminine traits in man created self-doubt. Such people could hardly be supportive parents to a gay.
Gay Zoroastrians breed massive guilt (taught also in Jesuit schools). It led to my suicide attempt at 18. "The child, the woman, the artist are always under siege.” Children will be children. We had the empathy of co-convicts for each other as children.
The ‘New’ gay left in Hyderabad
I was not invited by the young left gay activists to their celebrations in Hyderabad. I gate-crashed to remind them that theorising is also a part of activism. "To theorize the revolution is also revolution.” (I have written five books on gay theory in 25 years.) Writing is a political act and to belittle the intellect is just plain wrong.
A woman journalist called me at 1 a.m. to learn the difference between ‘gay’ and ‘queer’ (one is born gay, but all become queer in some way). The local press allowed me my night’s rest (I’m 72) but was at my door at breakfast.
Section 377 is "read down.” In layman’s terms it means: that sex (1) between same-sex adults with (2) informed consent and (3) in private is now legal in India thanks to Justices Dipak Misra, Dr D. Y. Chandrachud, A. M. Khanwilkar, Rohinton Nariman and Indu Malhotra (a woman, who asked Indians to apologize to its gays for centuries of ill-treatment).
I instructed the local press through humor: A young Iranian couple was caught in flagrante by a priest in a place of worship who berated them for a lack of shame, morals, religion, culture-sensitivity. The scared couple were bold enough to say they lacked none of the above but only a room of their own.
How will the privacy dictat hold in a country of 1.5 billion with only half-a-billion homes? Won’t 18-year-old gay males sensing "freedom” have sex in public parks and toilets as before? Won’t the police blackmail them now as they did before the 377 was read down? (Uttar Pradesh has most cases against gays not because of a horny populace but because of its corrupt police force. Kerala and Delhi come next, in that order.)
Most people did not know that the 2009 pro-gay judgment of Justice A. P. Shah of the Delhi High Court was applicable within the jurisdictions of all India’s High Courts. Their police forces kept cracking down on gays. But statistics show that gay arrests declined in Delhi, over time.
The saddest part about the 2018 Supreme Court quashing of Justice Shah was the spectacle of parents dragging their lesbian daughters to local police stations where male officers threatened hapless girls with prison. (No one dared to state 377’s exemption of women.) Some girls committed suicide. It is hoped the new judgment protects these girls as well.
The road ahead is long. It feels good right now to feel "free” in the head; not to wake up each morning feeling like a "criminal;” not to fear a knock on your door each time you’re in bed with your gay lover(s).
Most male homosexuals in India live at home with their parents throughout their adult lives. Will the government or private pro-gay nongovernmental organizations provide safe havens for space-deprived Indians where police non-interference is guaranteed?
Most bisexuals in India are married men who infect their wives (and unborn children) with AIDS (acquired immuno deficiency syndrome) from male (or female) sex partners. Is the government ramping up the anti-AIDS campaign? (Its proclaimed success has turned out to be fake news.)
Future questions
What about gay marriage? What about non-married gay surviving partners’ rights to their dead gay partners’ property? What about gay children’s inheritance rights? What about transsexuals’ right to recruitment and job-guarantees for continuing in their jobs after sex-change? What about recruitment of trans people in the three defense services? The list is almost endless.
The law said the constitution is a living document and it will change with the times later. But the average age of the five petitioners is near my age and they want change NOW.
What about an immediate anti-gay bashing law on lines of the laws protecting Dalits?
Right to Privacy and Transgendered’s Rights opened the way to the new gay rights in India (though the court said its judgment for trans won’t apply to gays).
Now parliament has to frame new laws. They botched the Transgendered Rights Bill by coupling it with the Anti-Begging Laws. If India’s eunuchs can’t beg they will practice prostitution. So the remedy seems worse than the disease.
Parliament has not spoken, except for member of parliament Shashi Tharoor, on gay rights. The government through this long, legal drama had no opinions, churlishly enough. A former attorney-general (now deceased) rumored to be gay never used his office to alleviate the plight of less fortunate gays. (He did write on the Wilde trials for the Press from his closet.) Should public schools teach gay sex as an alternate lifestyle? [The Delhi Deputy Superintendent of Police said ‘No’ already.] If I write books is there a guarantee that they’ll be read? I educated journalists last night. What about my neighbors who have boycotted me these 30 years? Yesterday’s education is not for today.
We need staggered judgments, lawmaking, acceptance in our society. (Even California shot down gay marriage after the US Supreme Court allowed it.) Change won’t come in a day.
The Koran says: "A good word is as a good tree.” It spreads shade and yields sweet fruit. Our society must evolve with our new laws. The one who plants a tree rarely gets to eat its fruit. But future generations will.
Hoshang Merchant is a retired professor of English and a gay activist.