Thoughts on Section 377

52 Comments

I don’t usually like to type out posts on my cell but I’ll make an exception this time.

I first came to know about this on Karan Johar’s Instagram Feed then all the celebs followed.

India and Pakistan are going off on different trajectories. I do generally applaud the Indian model but does one have to be Western to be wealthy?

As a personal aside I’m generally in favour of licentiousness but I find the perennial identity wars in the West to be tiresome. It’s probably a side effect of the intense loneliness that liberal hyper capitalism brings about.

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52 Replies to “Thoughts on Section 377”

  1. Decriminalizing something that was never against ethos of Indian civilization but rather just stuck around because of a legacy British law is not following footsteps of West. Anyway it was never enforced but at same time the law was used by nasty people to destroy or blackmail middle class LGBT folks careers etc.

    Next unnatural garbage law that needs to go from India is criminalization of ganja. That law is a direct affront to Hinduism as we consider it Bhagvaan Shiva’s prasaad. Again a British legacy just so they could wean off Indians from what grows abundantly naturally in the land and onto their cigarettes. Again nobody persecutes poor Sadhu and Fakir Babas for ganja possession but a major grower can always get blackmailed.

    Major victory for Bharat and Hindutva today. India needs many more such “turn back the clock”s to detox the land.

    1. The problem with ganja is when its smoked. Like with tobacco, all the carcinogens are in the smoke not the nicotine/cannabinoids itself. The ban on public smoking has already improved quality of life tremendously in India within my life time and the young aren’t taking up tobacco quite as they used to. Which is good. I don’t want ganja to be the cool thing to smoke and get cancer.

      But… Bhang (cannabis as a traditional drink) doesn’t have the same risks. And they are sold in state-owned outlets in some states during the festival season. Again, this is as it should be. The vices should ideally be a state monopoly. Some states do this effectively with alcohol and generate a lot of profit for useful work. But I am not in favor of the current crop of distilled spirits which can be argued to cause more expenses in the long run (liver diseases and such). They should all be banned and only traditional low alcohol containing beverages allowed which have lower risks of such problems.

      The next item is prostitution. I believe Arthashastra advises a state dominance for this vice. Will substantially cut down abuse and trafficking and for the capitalists who think government-ownership destroys industries, well, isn’t it fantastic that the vices are destroyed?

      1. D

        I agree on the prostitution bit as well.

        Is the traditional Indian way of smoking ganja harmful in a carcinogenic way though? I’m talking of packing the ganja at the bottom of an earthen chillim, using coconut fiber to do the burning.

        1. I think Turkish government owns some or all brothels . In Germany , prostitution is legal and recently a chain was floated in the stock market. In anglo-saxon countries , moralistic attitude prevails. In Britain , women parading themselves for their sex services not not illegal; but if any man approaches them , he can be arrested.

  2. I dont think everything has to bee seen in India vs Pakistan context. The 65 war yes, the article 377 thing perhaps not. BTW Is it the same article number in Pakistan too?

    The article was mostly there in the law just out of inertia , no one wanted to be seen taking it down. But there was not much social support for the article. I dont mean that majority of India condone homosexuality its just criminalization was a bit much(even for my conservative parents). Thier perception is its a mental illness etc. Had India been a muslim majority/christian majority this would/could have been hot button issue. Its just our taboo subjects are different. Another example would be abortion.The article itself was invoked something like only 200 times or so in the last 150 years. In a country where laws are frequently misused to target the weak , the article is probably the least used/abused to target the vulnerable.

    Johar coming out would help the community something which vikram seth coming out could not achieve. I feel reading parts of judgement, the judges got carried a bit in the moment, and forgot the standards and the words they have used and said can be seen as a benchmark, which will not be followed in the subsequent judgement or the judges. The Indian supreme court is only a shade liberal than the society and sooner rather than later there will be a judgement to reinforce that conservatism.

    1. Saurav,

      Yes, Pakistan has exactly the same Section 377 (I believe so does Bangladesh).

      I thought Karan Johar was already out? At least everyone knows about his sexual preferences.

  3. This is a major victory for the LGBTQ community in India. As the justices said, sex between consenting adults should not be a crime. This judgement came after various landmark judgements defining privacy as a fundamental constitutional right.

    Sadly, this type of victory cannot be won in Pakistan (though Section 377 is exactly the same) because the country is an “Islamic Republic”. If someone questions the British colonial law, then they will treated to lots of arguments about the Islamic way of punishing homosexuals. So we’re just not going to go there, at least not until we become a secular state (who am I kidding?)

    I don’t think there is necessarily anything Western about letting people do what they like in their bedrooms, as long as the other party has consented to it. The State should stay out of people’s private lives.

    As an aside, homosexuality in Islam is quite an interesting topic. Men have very intense friendships, some of which cross over into sexuality. However, you cannot have a gay identity or demand rights based on that identity. There is also the general hypocrisy that you have to have a wife in order to be taken seriously by the society. There are a lot of supposedly “straight” men in unhappy marriages who would really rather be with a guy, but cannot do that in a Muslim country. It’s like 1950s America.

    1. All of Turan falls firmly in the Sotadic zone. Things are on a different level here. Women are for babies, boys are for love.

      The gay identity in the Bharat Turan continuum belongs to the wicketkeeper not the bowler lol.

      1. Yes, this is a difference between the modern Western notion of homosexuality and traditional Islamic notions. In the West, it is the gender of your partner that determines whether you are gay or straight. In Islamic societies (and also in some parts of Latin America), it is the position you prefer during the sex act.

  4. Also, just to note that the Delhi High Court had decriminalized homosexuality back in 2009 but then the Supreme Court had re-criminalized it. I hope that this decision ends this battle once and for all.

  5. “does one have to be Western to be wealthy”

    Western, no. But Anglo, yes.

    There is a reason these guys have won more than 80% of the Nobel prizes in economics. They understand wealth and property rights like no other culture in the world.

    Societies that have become wealthy have either adopted (Dutch, Gujaratis ? South Indians ? ) or been forced to adopt (Germany, Japan) their political and social ideas.

    Countries which resist these liberal ideas have only become rich due to an abundance of natural resources or some temporary geo-strategic factors.

    All this becomes clear if one adopts a point of view where the focus is the maximum benefit of the average person (in material and spiritual terms) of the society they claim to identify with, rather than some kind of cultural ego (common especially among English medium desis who happen to cosily live in the Anglo world).

      1. Japan’s Constitution was developed by the Americans after the defeat in WW2, and that set the basic trajectory.

        China is not wealthy, its government has a bunch of cash though. The average household consumption expenditure (PPP) in 2013 (World Bank):

        USA: $ 36,000
        China: $ 3910
        India: $ 3149

        China’s GDP is inflated by excess investments using capital generated by a export surplus, which is ultimately rooted in a natural resource (cheap, politically neutered labor).

        1. China has a high aggregate income and wealth. But low per capita income and wealth.

          China has a higher national income and GDP than America. Because China is horrendous at generating high rates of return on investments/savings; China has less wealth than America. But China is likely to cross the US in aggregate nominal wealth very soon.

          What is “western”? English business common law was heavily influenced by Roman and Greek law. Which in turn were heavily influenced by both Arya business law (as in Manu Smrithi and Dharma Shastra) and Sumerian business law.

          I need to research more about Egyptian business law.

          “Western” is heavily influenced by the “East”. Albeit the ancient Greeks customized trans Arya law to increase the power of the state and limit the power of the individual to facilitate eminent domain, high regulation and high taxation. In Arya Varsha these were more restricted.

    1. Agree largely with what you’ve said, except that you’ve got the Dutch bit mixed up. The Dutch were the original capitalistic protestants in Europe due to their geographic location and overthrow of Spanish Catholic rule. Most of what we take to be traditional English values like thrift, conservatism, industriousness and the nuclear family were actually brought over by the Dutch during the Glorious Revolution. The Dutch golden age didn’t last long as the English muscled in on it, but the framework for global economic domination was laid by then.

      I’ve grown out of my brown-sahib Anglophile phase, but I can’t help but feel that being plugged into the English speaking world is a blessing. The philosophical concepts of Hinduism have ported surprisingly well to the English language, and Indian soft power is doing quite well.

      1. Thank you for this comment Siddarth. Honestly, the reason I mentioned the Dutch was that I was struggling to think of a society that adopted the institutions the English were able to develop without being forced to do so due to military defeat.

        Regarding Anglo origin institutions working well in India, I think this has something to do with the fact that the West Coast Indian society had similarities to the English and Dutch, being maritime trade oriented, and the fortuitous emergence of a liberal Bengali Hindu tradition on the East coast. I remember reading that Gujarat and Bengal were the only Indo-Aryan regions where, even traditionally, the consent of women would be taken before arranging their marriage.

        I think India doing well has a lot to do with these populations, along with a displaced urban Punjabi Hindu population, having a disproportionate effect on the early Republic.

  6. Reposting my comment here:
    http://www.brownpundits.com/2018/09/04/open-thread-13/#comment-20918

    The 10 Darshanas and their affiliated and derivative philosophies (Sikhism) do not restrict LBGTQ based on everything I have read and studied. The same is true of everything I know of Taoism. Given this I don’t think it is a stretch to say that eastern philosophy has no issue with LBGTQ.

    Sadly 377 was not struck down previously in an attempt to placate Christianity and Islam. 🙁

    1. I don’t think the RSS is particularly happy about today’s verdict.

      Whatever the Hindu scriptures may say, it is a fact that conservative Hindus were influenced by Victorian attitudes towards sexuality. Some people are quite disturbed by the erotic temple sculptures for example.

      1. Quite the opposite. This is precisely the type of thing RSS/Hindutva/BJP want. And this is one reasons some demonize them as Islamaphobes.

        Kabir, you sometimes comment on Sanathana Dharma, which is fine. But if you comment, I think you might consider becoming curious and studying. Sanathana Dharma values freedom of art, thought (manas or manamaya kosha), intuition (buddhi or vijnanamaya kosha) and feeling (anandamaya kosha or causal body). This includes respecting the right of others to try to be disrespectful, offensive, demeaning, racist, sectarian, bigoted, prejudiced, hegemonic, oppressive to us. What others say and think is none of our business. What we do in response to the choices of others is our business.

        Because of the freedom ethos in the east, intolerant and bizarre views are also allowed.

        This said I am not aware of any parampara or traditional school in Hinduism, Buddhism and Jainism that rejects left handed tantra (Vaamaachaara) outright. I would have said the same about Sikhism until the late 1800s. But after 1906 this may no longer be true of Sikhism. Left handed tantra (which fascinated many Nazis) is considered a legitimate school. At worst others will say that this path is full of dangers and can only be traversed with the help of an enlightened guru, very few of which remain alive.

        “erotic temple sculptures” . . . it is extremely taboo for Hindus, Buddhists and Jains to criticize this overtly.

        But you are right of course that Hindus (including Buddhists, Jains, Sikhs) were heavily influenced by Islamic, Christian and English thought. Decolonizing the Hindu mind is going to be very difficult. But many are trying to do this.

        In an early comment you mentioned that Hindus wouldn’t like their daughter to walk about naked. This is true. Modesty is encouraged in eastern thought to prevent jealousy (evil eye). Jealousy can lead to curses, resentment and revenge. This is on top of pure safety concerns. This said, if females walking around naked is part of a religious or spiritual discipline, this is respected.

        For thousands of years many young girls have become digambara saints. They don’t wear clothing and dedicate their lives to finding the truth. These female naked digambara saints are highly respected, revered and even worshiped.

        Sadly this is no longer as safe and common as it use to be.

        Some young beautiful naked female spiritual aspirants use to visit Ramakrishna (the great saint of Bengal). They wore no clothes but carried a trishul (trident weapon) to protect themselves from nasty evil men. Sadly they frequently had to stab bad men attacking them. [Which is a horrible manifestation of the moral degredation and depravity of Bengal.]

        Ramakrishna sat close to them and in a very loving, humorous and respectful manner convinced them to wear clothes purely for their own safety. They could remain unclothed mentally and in spirit.

        It is incredibly sad that India’s people have become so impure, corrupted, paranoid and cynical that females can’t be unclothed in public. What matters is purity and modesty in thought, feeling and character. Not external virtue signaling purity and modesty.

        This said, Hindu females who dress very fashionably and colorfully are considered modest.

        1. Again, I really do not care about Sanathana Dharma. Thanks.

          I have no time for bizarro views nor am I going to let someone be bigoted towards me. Perhaps that’s “post modernist” of me.

          I operate as part of the reality-based community.

          1. “September 6, 2018 at 4:58 pm
            I don’t think the RSS is particularly happy about today’s verdict. . . . it is a fact that conservative Hindus were influenced by Victorian attitudes towards sexuality. Some people are quite disturbed by the erotic temple sculptures for example.”

            If you “really do not care about Sanathana Dharma” then why write about it so often?

            No one is being bigoted towards you. You are free to describe eastern views as “bizarro”or non “reality-based” if you wish.

          2. I care about the political movement called Hindutva (which I despise). It is anti-Muslim and anti-minority more generally.

            Your myths are not of interest to me.

            It is not “eastern” views that are bizarre, it’s your personal views that I would characterize as such. There is a difference.

          3. Hindutva is a racist right-wing ideology with terrible practical consequences for Indian Muslims. That’s why I hate it.

          4. Zach, within India the group most supportive of LBGTQ rights is Hinduttva/RSS/BJP. This is a win for them.

            Kabir, you are not curious about Hindutva and from your own words say you know little about it and yet:
            “I care about the political movement called Hindutva (which I despise). It is anti-Muslim and anti-minority more generally . . . Hindutva is a racist right-wing ideology with terrible practical consequences for Indian Muslims. That’s why I hate it.”
            ???
            I am thoroughly confused.

            The moto of Hinduttva or Hindu Tattva is:
            ““indram mitram varuNamagnimAhuratho sa divyo suparNo garutmAn |
            ekam sadviprAh bahudhA vadanti agnim yamam mAtarishvAnamAhuh ||” – Rig Veda 1.164.46”
            The second half might be translated as meaning:
            “Truth is One, but the wise refer to it in many ways like agni, yama, matariswan . . . ”

            Is this universalist all religions are one, all religions are true ethos what you find offensive about Hinduttva, the RSS, BJP, Modi? Do you find Modi’s public praise and eulogies of the the prophet Mohammed, Peace be upon Him, to be offensive? Nothing wrong with this position. Some conservative Sunnis do find this offensive (although my observation is that this is less true of minority muslims, liberal muslims). Some post modernists and marxists also find this offensive; perhaps because of their general suspicion of all religions? Is this why you are upset?

            Or is your upset because you believe that Modi is creating a Fitna (civil war) within Islam by winning over minority and liberal muslims to his side?

            Or is your upset because you believe that Modi is anti post modernist?

            I find you very confusing. Since I don’t understand you or what you are offended by; nothing you write is offensive to me.

            Warm regards Kabirji bhai.

          5. Anan,
            Anyone who knows the history of Hindutva and what its founder Veer Savarkar had to say about Muslims and Christians would understand why I consider it to be a racist ideology. Savarkar was inspired by Italian fascism. There is a distinction between the religion of Hinduism and the political ideology of Hindutva. Shashi Tharoor has discussed this in great depth. I am neutral about Hinduism (people are entitled to believe in whatever religion they want) but I despise the political ideology of the Sangh Parivar. I despise all right-wing ideologies in general. Hindutva is as bad as Zionism or Islamism.

            Modi is responsible for a pogrom against Muslims in Gujarat. No amount of public praise of the Prophet is going to make up for that. Muslims are being lynched on suspicion of eating beef. The “love jihad” rhetoric etc is also very offensive.

            I believe in Nehruvian Secularism and anyone who is against that is my ideological enemy.

            We’ll have to agree to disagree. I am never going to be converted to a pro-Modi viewpoint. I am firmly on the side of the Congress Party.

      2. “The core of Hindu spiritual teachings is that an individual’s essential nature is not rooted in his or her sexual orientation, or any external physical traits. What is most important is our ability to simultaneously embrace and see beyond these apparent external differences to celebrate the Divine core of our being, to transcend the body, senses, and ego,” Venkataraman concluded.

        https://www.hafsite.org/decriminalizing-same-sex-intercourse-indian-law-catches-indian-culture

  7. Property rights and limited government were far more deeply embedded in Manu smrithi, Dharma Shastra, Anushasana Parva Mahabharata than they have been in any western society. There are far more restrictions against eminent domain in the east than in the west.

    Sadly when most of Arya Varsha was conquered by Islamist Jihadis, this was lost. My own view is that per capita real income fell after Islamist conquest partly because of a loss of property rights, limited government, free trade, free art and thought; and didn’t return to ancient levels until after 1947.

    1. Francis Fukuyama says similar things. There is certainly something to be said about the fact how easily much of liberal democracy was easily digested in India. But I think the leadership of Indian subgroups more receptive to such ideas was the more important vector.

      I dont think the classical Haryanvi or Uttar Pradeshi Hindu society is very receptive to Hinduism, but they tagged along under the influence of Gujarati and Bengali Hindus, and now democracy has taken a life of its own in the heartland.

      1. I think you meant receptive to democracy rather then hinduism. Because Hinduism is a UP construct.

        I dont think any community in India is democratic. Given half a chance they would turn the country/state into their community autocracy. What helps democracy in India is no group is hegemonic enough in pure numbers to overwhelm the others(example Pakistan). This allows stalemate to be brokered through democracy because that would be acceptable to all sides.

        For all criticism of autocratic Modi, you just have to look at the leadership in Indian states as to how “democratic” they are. They are just Modi’s of their state, some even more autocratic then him.

        1. Saurav, I think India is more plural, free and democratic than that.

          How is Hinduism (or Sanathana Dharma) a UP construct? Isn’t Hinduism the 10 darshanas and their affiliated, related and derivative philosophies (such as Sikhism)?

          1. I agree India is democratic but i differ on “why” its democratic.
            Hinduism core ideals have crystallized in and around UP and to an extent in Sindh and Punjab. Other regions have added to it, but only after the founding principles had been laid out.
            Even though many hindus consider Sikhism as derivative philosophies , sikhs dont consider it that and i think we should acknowledge their view.

          2. Saurav, Sikhs are divided on the question of Dharm and Sanathan. Many Hindus follow the 10 Sikh Gurus and revere the Guru Granth Sahib (maybe more Hindus than Sikhs). Large Gurudwaras in India and America are full of Hindus. Some of my relatives regularly go to Gurudhwaras, listen to Paath, and would be shocked if they were told that this isn’t their tradition.

            Until very recently Punjabi Hindu families contributed one son to the Sikhs. Punjabi Hindus feel that they are Sikh. Modern Punjabi is Gurmukhi Punjabi.

            Having said this, most Sikhs live in India and perhaps Indian Sikhs are different from Sikhs outside India. In particular Sikhs in India regard Canadian Sikhs and to a lesser degree English Sikhs to be crazy. American Sikhs appear to me to be closer to Indian Sikhs.

            Non Indian Sikhs are free to say what they wish. That is their choice. But Hindus consider Sikhs to be part of the Hindu family and revere/worship the 10 Sikh Gurus. The 10 Sikh Gurus are the heroes of India. If not for them all of India likely would have fallen to Islamist Jihadism and there would be no India today. All Indians should be (and the vast majority are) deeply grateful to the Sikh lions.

            Intend to write on Sikhs and Hinduism soon. Including what lead to the 1906 schism that caused many parts of the Sikh faith to be thrown out (I guess they are Hindu Sikhs now?), and removed Hindu deities from the Golden Temple (which had been continuously worshiped since the time of Guru Nanak). The tenth Sikh Guru had Varanasi Kashi Brahmins perform a yajna on his behalf to the divine mother; so that the divine mother could crown Guru Govind Singh as the protector and savior of the Sanathan Dharm peoples. This is one reason Hindus worship and pray to Guru Govind Singh so much.

            Guru Govind Singh also worshiped Krishna.

            Do not expect Punjabi Hindus and Punjabi Sikhs in particular to allow foreigners to sow divisions between them without one heck of a fight:
            https://www.youtube.com/watch?v=V5qBgbctHnc
            This is a very brief heavily simplified description of the Sikh Hindu relationship

        2. “What helps democracy in India is no group is hegemonic enough in pure numbers to overwhelm the others”

          This explains democratization after 1977, not before it. There are lots of diverse countries which did not adopt democracy as quickly as India did.

          I think the critical period was the one from 1950-1975, which made democracy the legitimate way of acquiring power and politicized a lot of different groups (bureaucracy, large farmers, industrialists). After 1980, smaller farmers and agricultural laborers (mainly Dalit) entered the fray, and after that there was no going back.

  8. Following the point of “D” above, China repealed their homosexuality law in 1997. Japan has no law.

    Why do you call the present repeal “western”; If anything, please note that “Section 377 of the Indian Penal Code is a section of the Indian Penal Code introduced in 1861 during the British rule of India. Modeled on the Buggery Act of 1533, it criminalizes sexual activities “against the order of nature”.

    There is a large number of British era laws which sound strange today, including:

    Section 497 of IPC “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be —

    Section 294 “Whoever, to the annoyance of others; (a)Does any obscene act in any public place, or(b)Sings, recites or utters any obscene song, ballad or words, in or near any public place,Shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both”

    The habitual offenders act which is applied only to ST.

    and so on and on.

    I do not follow the relevance of ” but does one have to be Western” and “follow the colonizer”. We can repeal all the corrosive laws established by Britain and still be poor; is that OK by you?

    “It’s probably a side effect of the intense loneliness that liberal hyper capitalism brings about” I do not know what “Intense loneliness” that “hyper-capitalism” has brought about. In any event, what has this got to do with repealing anti-homosexuality, anti-cannabis, anti-prostitution laws. Do you realize that these laws were actually implemented by Britain?

  9. As a personal aside I’m generally in favour of licentiousness but I find the perennial identity wars in the West to be tiresome. It’s probably a side effect of the intense loneliness that liberal hyper capitalism brings about.

    yep. tolerance and acceptance doesn’t mean emulation.

      1. Just due to technicalities actually; as mentioned in that article, “The court’s verdict was in reference to section 377 of Indian Penal Code (IPC), which does not automatically get extended to the state of Jammu and Kashmir, governed by its own constitution and criminal law—Ranbir Penal Code (RPC).”

    1. froginthewell, as you mentioned, this is due to Article 370 under the Indian constitution and the fact that Indian laws do not automatically apply in Kashmir.

      I don’t see why “liberals” are to be congratulated. It’s possible to be for LGBT rights and at the same time call out India for its treatment of Kashmiris. Let’s keep the two issues separate.

        1. As I said, let’s keep the issues separate. Kashmir is a disputed territory and Kashmiri Muslims are waging a struggle for the right to self-determination. I support their right to their own country or to merge with Pakistan if they so wish.

          I would hope that an independent Kashmir would respect the rights of sexual minorities, but that is something for Kashmiris to decide.

          I don’t want to turn this thread into the usual India-Pakistan debate on Kashmir, so I will leave it at that.

        2. ..but they are soldiers of Allah (SWT) and will not abide by the non Quranic laws of the Kuffar bandits.

          Kashmiris are not of the gay! Even Endian bandits know it and they have separate laws. Kashmir is a sanctuary of Islam in a sea of Kuffar.

          #FreeKashmir
          #TuranMeriJaan
          #EndEndianOccupation

          1. I realize you are being sarcastic. But there are gay people in Muslim-majority societies (including Kashmir) and their rights should be respected.

            The Kashmir issue should be kept separate from LBGT rights.

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