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Section 377, Bigotry and Why the Constitution Is Neither Heterosexual or Homosexual

With the Supreme Court readying itself to review Section 377 again, India must try and rid of itself of its bigoted and patriarchal ways and become more inclusive.

Ever since the Delhi high court decriminalised gay sex in 2009, Section 377 has undergone many twists and turns. Credit: Reuters

Ever since the Delhi high court decriminalised gay sex in 2009, Section 377 has undergone many twists and turns. Credit: Reuters

Nearly every time Section 377 comes up for discussion, particularly when a court or a group of people state it should be read down to legalise the naturalness of homosexual sex, narrow-minded hard-liners commoditise the LGBTQ community as an import from another nation, implying such behaviour was ‘smuggled’ into India.

This consistent baseless contention has lost its way as the focus shifts to the Indian constitution and logic – a sort of a battle between fact and fiction.

Back in August, when the Supreme Court spelt out its view on privacy, questioning the existence of Section 377 and its over-reaching interference over sexuality, and now through its latest decision to revisit the law, the focus has shifted to the constitution, to fundamental rights and the importance of ‘dignity’ and ‘privacy’.

Yet, even as logic seems to slowly prevail in this long-drawn battle, it is alarming how many leaders take to television and other forums to claim that homosexuality has no place in the Indian constitution. As one such person, Pandit Ajay Gautam, told a national television channel, the constitution does not mention homosexuals.

What he never said and what is often left out of any such debate, is that the constitution does not mention the word heterosexual either.

Gautam is part of a circle that is not merely biased, but is no different from a large section of society who see themselves as ‘obvious’ and ‘regular’ to a system, as well as in charge of it. Hence, anyone else is a beneficiary of what they dole out. Therefore, the constitution to them is heterosexual in nature and any person wishing to be included in that constitution need to be identified and defined as accepted within the parameters that they state. In short, they are the benchmark of everything, and all else has to fall in line.

However, the constitution, without a doubt, was written keeping in mind diversity and inclusion for every citizen, whatever shape, size, colour, religious belief, sexuality, language they may be. This brings it down to individual choices and the many individuals that make up communities, regions or the nation at large. It was never one or the other.

What is forgotten conveniently is that the laws that were made, or are to be made, are a reflection of this constitution. When the constitution refers to citizens and their fundamental rights, it includes us all. Having said that, the laws that follow, be it to protect women or children, are aimed at interpreting the larger purpose of fundamental rights even when none of them are defined as heterosexual or homosexual or if no specific gender binary is emphasised.

People like the Gautam are representative of a feudal mindset soaked in patriarchy that wishes to control the system and a narrative that makes them so powerful where their sense of morality overrides the constitution and its ethos. The legacy created by such a mix is such that even victims don’t see the crimes committed against them and this is best represented by the acceptance of domestic violence and forced marriages.


Also read: Love Gets Second Chance as Supreme Court Moves to Re-examine Verdict on Homosexuality


It’s not difficult for people like Gautam to build a following as there is a growing tendency to mix sin and religious beliefs with criminality. There is also no effort to even understand the irrelevance of the law or a law that is a result of a perceived ‘threat’ to a religious belief. Section 377 falls bang in the middle of such a reality. This, unfortunately, gives irrational minds and voices a place in what should be a logical, human rights debate.

However upset and irritated one might be by the views of people like Gautam, most of us are truly liberals: ready to listen, engage, share our stories, draw similarities, invoke nature, define our identity, enjoy privacy and share spaces. When we seek our rights, we don’t wish to infringe on other people’s rights.

As the SC said: “What is natural to one may not be natural to the other.”

That is the charm of nature and the beauty of diversity that frees everyone to feel secure in themselves – so free that one doesn’t need to control anyone else.

Sharif Rangnekar is a communications consultant and a former journalist.