With 377 Gone, a Whole Edifice of Arbitrary Morality has been Shaken
A new beginning, where desire will no longer be seen as something to be feared or sneered at
The Supreme Court’s recent verdict repealing article 377 marks a huge shift at a very core level! And even though it was awaited and hoped for, it left many of us feeling overwhelmed and in disbelief.
My initial responses have been mixed, of course, I have rejoiced and exulted, but it also felt anti-climactic and left me with a sense of emptiness, the kind I’ve often felt the morning-after an exhilarating dance performance, it has also brought to the surface a sense of loss for the time and energy that so many of us have unnecessarily expended negotiating a legit space for ourselves all our lives. But most of all, it has restored my faith in the constitution and inspired great admiration for the judiciary.
It has been most heartening that Chief Justice Dipak Misra and Justice Khanwilkar categorically stated that majoritarian morality cannot override the constitution. I wish to express gratitude to the bench for this historic, and may I add, most carefully and sensitively worded judgment against the archaic law.
Back in 1861, exactly around the time my grandfather was born, the British introduced section 377 into the colony’s penal code, thus injecting into the minds of us natives a new-found binary, one that would introduce a new moral stance polarising us over the rights and wrongs of homosexuality. To shed light on the sexual fluidity that pertained within the subcontinent before that time, I only have to evoke the memory of the 16th century Punjabi Sufi poet, Shah Hussain, who is remembered and celebrated more by the name of “Shah Madho Lal Hussain”, because of his male lover, Madho Lal, who he lies with in their joint-tomb, outside of Lahore. The mazar of these male lovers is a site of pilgrimage and their urs is celebrated by hundreds of thousands to this day. Incidentally, one of my performances, Fana’a: Ranjha Revisited, concludes with a kafi by Shah Hussain, mein vi jaana jhok Ranjhan de, naal mere koi challe (I too want to cross over to Ranjha’s abode, please someone, come along with me!)
In continuation of their 16th century Buggery Law, the British criminalized homosexuality on the basis of it being “unnatural”. Since childhood, this is the term that I have heard most commonly tossed about by the morally-upright in reaction, often vehement and snide, to our innate and natural proclivities and desires. To me this vehemence is an acquired attitude, and because we as Indians are not best known for honestly addressing or intelligently processing sexuality, this attitude has remained doubly unprocessed. Thus, the moral reactions to it have remained both readymade and unexamined.
It is curious, that they—all those who hold the high moral ground on this subject—could presume upon Nature, Prakriti, to dismiss, discard and outlaw us. And what is sadder is that they could proceed to imagine Prakriti, as biased! It is sad because by doing so, they diminish the infinite abandon and beauty of unconditional Nature, or rather the sheer fullness of life, most of all for themselves.
While this particular binary may have been alien to us, we have our own repertoire of lethal binaries that are entrenched in our psyches: binaries of caste, class, religion, gender, colour, race and so on. In fact, culture is contingent on such binaries. But what must be remembered is that such binaries are always, by their very nature, arbitrary. They are based on pure assumptions and of course, are always laden with self-serving agendas.
Therefore, I am deeply moved and heartened by the judgment that quite literally calls-the-bluff on one such binary, by calling article 377 categorically “arbitrary”. It is due to this that I find this judgment particularly historic. It is self-reflective at a very core level, at the level of sex, the squeamishness around which has historically left it unexamined, and therefore, it is a very welcome sign of coming-of-age. It does not mean that we are becoming modern, a term that again has been polarised in contrast to our “precious” traditions, but that we are unburdening ourselves of one acquired binary that has unnecessarily tied our energies for so long. By letting this binary go we are decolonising and thereby, uncluttering our minds. I hope that we can similarly begin to examine the arbitrariness with which we subscribe to many a received-truth pertaining to caste, gender, religion, class, colour and so on. If we can invent binaries, which we do, then we can equally reflect upon them to disable and abandon them. Because nothing is eventually more desirable than an uncluttered mind, i.e. an open mind.
Similarly, Justice Indu Malhotra’s judgment is brimming with hope and sensitivity when she says that “History owes an apology to” not alone “the LGBT community”, but also, “their families”. The invitation of “families” into this discourse marks a meltdown moment. Because the most heart-rending battles pertaining to our sexual-difference are fought at home, with loved ones, who live, and often times, contribute to our trauma of being “different”. This arbitrary social norm very unnecessarily puts the unconditional love of a family to a cruel test. To love or not to love a child whose natural proclivities happen to be different. Proclivities that the parents have not caused, and thus don’t have to feel guilt or responsibility for, and proclivities that the child has absolutely no control over. They are as innate as the colour of his or her skin and not a result of flawed parenting, bad influence, or just a bad habit. And as Justice Nariman stated, it is not a mental disorder either. Also, by viewing the LGBT person within the warmth of a home and a family will hopefully help many shed the painful isolation that they may feel compelled to visit upon themselves.
With 377 gone, a whole edifice of arbitrary morality has been shaken. Today, neither the law nor the beautifully-syncretic culture of “Shah Madho Lal Hussain” support the prejudice that we have acquired and internalised to call our own. An opportunity has arisen for us to examine our prejudices, actually fears, of the other. And such an opportunity is a sign of coming-of-age to think on our feet and reflect upon the motivations that fuel our prejudices. It is only when we begin to examine the motivations that govern our actions and thoughts that we grow to become emotionally-honest adults. Welcome India, to a new beginning, where desire will no longer be seen as something to be feared or sneered at, but as Justice Chandrachud pointedly stated, viewed as a vehicle of liberty, dignity, privacy, autonomy, equality, and may I add, moral-responsibility!
Navtej Johar is a dancer, choreographer, yoga exponent and scholar. He is one of the petitioners who challenged the legitimacy of article 377 of the IPC that criminalises same-sex relationships.