Under State control

A piece I wrote for The Hindu's Mumbai edition... it was published the day after the Supreme Court held an open court hearing on whether to consider the curative petitions against its own verdict that had upheld Section 377 of the Indian Penal Code.

http://www.thehindu.com/news/cities/mumbai/news/nitin-karani-when-the-state-makes-choices-on-our-behalf/article8187623.ece

There were three sets of people with a very keen eye on the proceedings in Supreme Court in the matter of the curative: thousands of LGBT people and their allies; some legal eagles and the press; and a miniscule minority of opponents, mostly ‘religious’. This last group feels that not only must it oppose homosexuality within its own private sphere but also impose its world view on everyone else through the might of the State, even to the extent of punishing consenting adults with up to 10 years of time in jail. Compare this with maximum punishment of a ritual bath for a homosexual act (that too only for the priestly class) prescribed by the Manu Smriti.

We can debate the authenticity of the Manu Smriti and its importance, but it contrasts with the extreme position that the opponents, including the State, have taken by wanting to retain Section 377 in the Indian Penal Code (IPC). By now it has been argued often enough that Sec 377 is a law based on Victorian morality, which was itself rooted in the Bible, and that much of the IPC is a relic of the British Raj days.

The larger point here is illustrated in the fable of the Arab traveller and the camel, who first begged to insert its nose into the tent and then other parts of his body, with the Arab finally thrown out of his own tent. The State entered into our bedrooms with the IPC and now it refuses to get out. It has been decades since the State’s right to interfere in our choice of partners — sexual and marital — is being contested but it refuses to yield. The Arab traveller remains at the mercy of the camel when it should be the other way round. We, the people, have allowed the State to take control of our lives increasingly, to the extent that we have forgotten the liberties that were ours naturally. In every sphere of our life, the State limits and regulates both our economic, social and personal choices.

This did not happen overnight. It happened gradually, like in the fable, but it now seems pretty irreversible. In fact, we, the people, give the State more power every day over ourselves, even to make choices on our behalf each time we demand that the State perform a function other than the minimum required for us to exercise our choices freely, without fear to our life and property.

Most of us, wherever we may place ourselves on the political spectrum, only pay lip service to liberty, equality and freedom of expression; we do not know what we ask for when we demand that the State enact new statutes and more stringent laws (when it does not even execute existing laws fairly and efficiently, allowing scope for misuse), instead of reducing them to the minimum and simplifying the rest. This can be seen in every area of our life, from ‘net neutrality’ and use of social media to fiscal and monetary policies, and the selling and buying of our own assets. Governments, meanwhile, are only interested in increasing their power over the people. So there will be some noises about liberalisation and minimum government, but every government’s actions are quite the opposite in the guise of maximum governance and ‘social justice.’

What social justice is served by keeping Section 377 in the IPC? What does the State achieve by either punishing or the threat of punishing adults for a ‘crime’ without victims? Did social order and public morality breakdown when the Delhi High Court re-legalised ‘gay sex’ (given it was never a crime pre-IPC)? Did homosexuality spread across the nation like a newly-discovered virus and threaten nationhood in addition to heterosexual ‘manhood’?

The answers to all of these questions are staring at us but, no, the courts and the government will take their time to exercise their wisdom and decide what is good or bad for we, the people. Until then, far from enjoying the liberties and benefits available to heterosexual couples, we lesbian, gay and bisexual and even transgender people must pretend we do not break the law. Or else resign ourselves to the possibility that some individual or a cop may take it upon themselves to use Section 377 for harassment or extortion, if not for legal prosecution.

Of course, LGBT people will continue to watch the SC very closely, to see if it does take this last opportunity to correct its error of judgement.

How we define 'rape'

I won't go into the question of what sexual acts should or should not be termed 'rape'. In this note, I just want to remind ourselves that Indian law and society only see it as a violent act against a woman by a man. I believe that it should include such acts against any person, by any person, man, woman, transgender....

We live in a time where gender lines are blurring and people are asserting the rights to change parts of their physical sex and to present themselves free of the limitations of birth, culture, orthodox ideas of gender identity and sexual orientation. In such a time, shouldn't our rape/sexual assault laws become fair and representative of our evolving notions of selfhood? Even the widely acclaimed Nalsa judgement on recognition of transgenders does not expand the definition of rape although it expresses concern that they are vulnerable to sexual assault.
Friends and acquaintances have told me about men who approached them claiming that they were forced to have sex by other men and even women. Such incidents may be fewer in number than rapes in the traditionally or legally understood sense, but does it mean there should not be laws against such acts? 

I acknowledge this is not the first time this question is being raised. In fact there was a proposal to amend the law in India after the well-known gang rape of a woman in Delhi in December 2012, but I believe the Congress-led government developed cold feet, ironically under pressure from women's groups. 

What prompted me to bring up this question again today were two recent news items. One was a report of an incident of groping of a woman by a hijra in Bombay. And the other was a report about Pinki Pramanik's exoneration of charges including rape. 

Some LGBT activists are unsurprisingly thrilled at the second piece of news. I am not in a position to discuss the merits of the cases against Ms Pramanik but note that as per the news report, the defence claimed that the charge of rape cannot be made because the law doesn't apply to rape by a woman. My sympathies are with Ms Pramanik with regards to the way she was treated by the media, the police, the medical establishment and many other people as a fallout of the cases against her. And I am glad the cases have now concluded. 

More importantly for the rest of us, especially lawmakers, it is time to reflect on the questions I have asked here and consider amending the law. I admit the rape of a man by another man is already within the ambit of Section 377 of the Indian Penal Code. In fact, there seem to be some Indians who think sex between men can only be an act of violence and not an expression of love. The example of such a person that immediately comes to mind is Meenakshi Lekhi, although she is a lawyer and a lawmaker, and she ought to know better. Some people will find the example of Ms Lekhi extreme and refuse to see her as someone with a belief system beyond one that is articulated by the BJP to which she belongs. But I believe she represents the tip of the metaphorical iceberg of ignorance in Indian society.

The battle against such ignorance will continue. As queer individuals, I hope we are more aware and proactive about fixing much that is wrong with our laws, not just Section 377.

PS. I am not sure why activists who have taken up this case of rape of a hijra   (http://timesofindia.indiatimes.com/city/jaipur/Transgender-alleges-gang-rape-by-cops-in-Ajmer/articleshow/36365899.cms) aren't insisting on application of Section 377. They seem to be relying on the rape law instead.