New Delhi, Oct 08: A public interest litigation has been filed challenging the constitutional validity of Section 377 of the Indian Penal Code. Section 377 is said to make homosexuality a crime. The Union of India is opposing the petition. The affidavit filed by the Union of India in this petition has made headlines recently. The petition seeks to delete the provisions of law which makes homosexuality a criminal offence on the ground that it discriminates against homosexuals. The Union of India has opposed the petition contending that Indian society is not yet ready to accept the legalisation of homosexuality. Section 377 is in three parts. It talks of carnal intercourse “against the order of nature.” These are the key words. What really goes against the “order of nature?” What does nature order? Gay activists would argue that this is an outdated concept. They are probably right. More interestingly Section 377 prohibits carnal intercourse against the order of nature of any man, woman or animal. The chapter and the section are entitled “Unnatural Offences.”
The explanation provides that there must be penetration to construe carnal intercourse. Carnal intercourse is sexual intercourse. It would follow that male homosexuality would be a crime in this country but lesbianism would not. And they talk of gender discrimination!
In England buggery is no longer an offence if committed in private between two consenting adults above a certain age. This is the view now in most advanced countries. In America the Supreme Court recently struck down the provisions of some state laws making homosexuality a crime on the ground that it violates the right of privacy.
It is argued that what two persons of consenting age do in the privacy of their home is not the concern of society. This is a strong argument. People have the right to lead their lives, privately, so long as they do not affect others.
Some states like Canada had gone further and is contemplating making homosexual marriage valid. America has not accepted this. A serious controversy rages.
In several western states there is a huge division in society with regard not only to making homosexuality legal but also with regard to legalising homosexual marriages.
Society is divided deeply on religious and social lines and it is obvious that the debate is not going to die down in the near future. People are understandably worked up on both sides of divided opinions.
Our country has always a rather lopsided approach towards sex. There is a lot of promiscuity around, but it is shrouded in secrecy and hypocrisy. It is rather similar to what used to happen in England two hundred years ago.
Things were more or less what it is like here now. They did everything but pretended to be prudes. But things have changed. And how. To appreciate the extent of social revolution one needs to take a glimpse into history.
In Lawrence James’ brilliant book on the Raj, The Making and Unmaking of British India, he has devoted a lot of attention to sex in British India. This applies to the period even before the Queen took over. He has placed interesting material on how things went on in Britain and British India. He brings out the social contrast. It fully illustrates how things change and how the world’s attitudes change.
Go back to England in 1800. The atmosphere was stifling. Sex was taboo. Homosexuality was a sin. In Britain buggery was a capital crime until 1861. Between 1800 and 1835, 50 men were actually hanged for sodomy.
There was a strong antipathy towards homosexuality and homosexuals were not only publicly ridiculed but actually pilloried. “Pilloried” ordinarily means public ridicule. It could also mean “torn apart.” That is what they actually did. This is what the mobs wanted.
James writes of London streetwalkers in 1810 who vigorously threw stones at a group of homosexuals. The mob was even more incensed when they came to know that some of the accused were coal heavers, butchers and blacksmiths.

These were “manly” occupations and such “men” could not possibly be allowed to indulge in such vile acts against the order of nature. It was unthinkable. Some felt that these degenerate practices came into British society from the notorious Turks. The mob would shout, “Hang them in chains. Pillory them. Hang the dogs.”
And so what did such people do? They were hounded in England and had to escape from there. They decided to come to India where life was much more easy. It was easiest in the Army. The officers had a field day. And then India had so many diversions.
We are not known for our variety for nothing. Of particular attraction were the eunuchs though one critic condemned them as “carrying on very extensive and abominable trade of unnatural prostitution.”
From James’ book one gets the impression that the Army had quite a few British officers who merrily indulged themselves over helpless subordinates. But it was not always so easy. Sometimes they got into trouble as did one Lieutenant Colonel Edward Smythe of Fifth Madras Cavalry who made a pass at one Muhammad Lal who turned violent and tried to murder him.
Those were the days when India was the permissive society and England was a place in which only the upper lip could be described as being stiff. Things have turned full circle. Even Oscar Wilde is now likely to be reinstated but in our country the right of persons to live their lives privately and on their own terms may take quite some time to achieve recognition. There are several sections in the Indian Penal Code which are anachronistic in a changed world. Section 377 is a prime example. As a matter of fact, Section 377 as it stands, would have made what Clinton did to Monica Lewinsky or rather what Monica Lewinsky provided to Clinton, an offence.
I am being discreet, because after all, some things can only be dealt with orally and cannot be put down on paper! The crucial words are “against the order of nature.” The possibilities are immense and the imagination can well run riot.
Perhaps the way out is now to argue that nature and its various orders have themselves changed.In a lighter vein, I am rather intrigued that this section also covers animals. I wonder who the complainant would be, if the “victim” is an animal. This reminds me of an incident narrated by David Niven in his autobiography
The Moon is a Balloon. He relates how at one dinner he had sat next to a colonel of the British Indian Army who proudly boasted, with a straight face, that he had “******” women of all nationalities and all kinds of animals. I am sure Niven must have been envious of the first claim but I am not quite sure how he must have reacted to the second!