This column appeared in the DNA on the 12th of December

Shortly after eleven, on Wednesday, I got a call from a friend who is gay. He was close to tears.  “The Supreme Court just made me a criminal” he said. “All I have done is been honest about my sexuality, and asked is the right to be with the person I love.  And now that has made me a criminal”. The call, one of many, followed the Supreme Court ruling on Section 377 where it upheld the law that criminalised gay sex, setting aside a 2009 Delhi High Court judgment.   Naz Foundation had challenged the Constitutional validity of section 377. Its contention was that the section violated a whole host of rights of citizens including the Right to Equality (article 14) and Non-Discrimination (article 15). And the Delhi HC essentially agreed. However, the esteemed SC has seen this issue differently and passed it back to Parliament to legislate.

Section  377 is a throwback to the colonial era, 1861 to be precise, when Lord Macaulay drafted the Indian Penal Code. It says, “377. Unnatural Offences — Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine.” Essentially Lord Macaulay came to the land of the Kama Sutra and Khajuraho and criminalised everything that did not fit into his vision of acceptable sex. Hardly surprising — given the country and the culture that he came from, where Lady Hillingdon, as late as 1912 describes the act of sex with her husband as being so exciting that every time he approached her room she closed her eyes and thought of England. Lord Macaulay, incidentally had contempt for the ‘natives’ of conquered lands. On being asked about the contribution of natives to literature, his response was: “A single shelf of a good European library is worth the whole native literature of India and Arabia.”  It is this man’s pronouncements on sex and sexuality that have been upheld by the highest court in India.

When India got Independence and adopted a new Constitution, section 377 of the IPC  was not repealed. We can outrage about the Constituent Assembly and the lawmakers in that era, but we also need to remember it was a different, more conservative time. It was a time that the very act of giving Hindu women rights of succession or divorce under the Hindu Marriage Act caused uproar and the law minister — Dr Ambedkar — resigned in protest when the bill was not passed in the first ever Lok Sabha. It took an election to get those rights in place. On a different level, although people like Ishwar Chandra Vidyasagar fought relentlessly to get the Widow Remarriage Act 1856 passed — as late as the 1970’s — film maker Ramesh Sippy killed off a lead character (Amitabh Bachchan playing Jay) in Sholay because he felt that audiences would not accept the concept of a widow (Jaya Bachchan playing Radha) remarrying. Yet, today neither the concept of a woman divorcing, nor inheriting, nor a widow remarrying seem to be alien to Indians.

The Europeans have always had rather strange notions of sex and have used the Church and the Monarchy, in the past, to impose these laws on the people. Homosexuality was not just a sin but also a crime —  and punishment in many European monarchies included death. On the other hand, the ancient civilizations of the East while not actively promoting homosexuality did not really care enough about the sexual habits of their subjects, to legislate. They assumed social norms would take care of social order, and that intervention by the State would not be required. Neither China nor India had laws against ‘unnatural sex’ as defined by Macaulay. It is possible that neither culture thought anything was ‘unnatural’ about any form of sex. And, a glance at ancient Indian literature would validate this point. Kings had better things to do than obsess about what people got up to in private spaces.

So it is back to Parliament. A Parliament made up of members who refuse to criminalise marital rape. A Parliament made of members who dilute anti-stalking laws on the grounds that “Everyone has stalked women at some point in their lives…. stalking is a norm in the country,” (Sharad Yadav of the JD(U)). And it is Parliament, with these Parliamentarians, that is supposed to repeal a law that criminalises gay sex.

This is not just about gay rights. It is about rights as laid down by the Constitution. It is about equality. And about non-discrimination. You cannot have the so called ‘moral’ majority deciding the limits to our freedoms. You cannot have populist morality defining freedoms. And, you definitely cannot legislate on what consenting adults do in the privacy of their homes.

The Delhi High Court, in 2009, when it struck down Section 377, said “If there is one constitutional tenet that can be said to be the underlying theme of the Indian Constitution, it is that of ‘inclusiveness’. This Court believes that the Indian Constitution reflects this value deeply ingrained in Indian society, and nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in its recognising a role for everyone in society.  Those perceived by the majority as ‘deviants’ or ‘different’ are not on that score excluded or ostracised… in our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is the antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.” It is this principle that needs to be adhered to. It is tragic that the Supreme Court did not see it fit to uphold this.