Section 377 Judgment Was a Big Win, But We Still Need to Liberate Sexuality

To express sexuality to the fullest , one needs a tolerant and encouraging environment in the post-377 world.

We won freedom at the courts. Yet, there is more to go, more battles to be won.

The 6 September 2018 verdict has been rightly a cause to celebrate for India’s queer community, since it went beyond simply admonishing the law and scrapping it for dictating whose sex is natural and whose isn’t, whose sexuality sacrosanct and whose perverse – in the same breath, it advocated a philosophy of anti-discrimination – a safe and healthy life for LGBTQIA+ Indians, free of harm and prejudice.

This year the ruling which read down Section 377 of the Indian Penal Code (IPC) completes four years.

The ruling mandated, among other things, a directive to the government to air the judgment far and wide. It also directed sensitisation programmes in each government department, agency, and most importantly, police stations and public service kiosks.

This has not happened, at least at the level of the central government and across major state jurisdictions.

While the absence of a heinous law ensures no punitive action, the bigotry towards sexual and gender minorities is still rampant. As many activists and legal scholars have pointed out, a comprehensive anti-discrimination law is the need of the hour.

There is considerable debate and discussion on this, so I won’t venture into it at the moment.

A Complex Narrative With Multiple Entries & Exits

What I would like to stress upon is the kernel of this archaic law that is now defunct – ‘unnatural sex’, and where can perhaps the dialogue around the 377 judgment lead us beyond the narrative of homosexuality.

If anything, sex and sexuality must be discussed more often in our private and public spaces.

Sexuality is not limited to the alphabets most associate with in LGBTQIA+ – it is but a complex narrative that has its multiple entries and exits in human life.

It is an evolving process. It animates desire across bodies, spaces, and objects as well. To feel unburdened with sexuality and have the freedom to explore it – most crucially, to have access to such possibilities, is the true promise of the judgment.

Understanding our own sexuality imparts a more vivid understanding of our bodies and how it feels, where it feels, with what tempo, and at what pause.

To engage in an erotic act carries a range of movements, a paraphernalia of emotions – perhaps this is why peno-vaginal intercourse is so boring since it already has a pre-determined set of actions.

Section 377 criminalised anything but peno-vaginal sex to preserve the purity of the heterosexual family, though in essence criminalised same-sex relations. The judgment axes this concept of purity.

Why then do we still rely on a heterosexual institution where sexuality is akin to reproduction and bringing forth a lineage – as if the wasteland we have created through years of climate change and man-made wars, both domestic and foreign, has made it more lucrative for future generations to inherit our homes?

Exploring Sexuality in a Tolerant Environment

What three years of this ruling should effectuate is more avenues for discussions on sex and sexuality.

This is not to say that it has not been happening prior to the judgment – in fact, these conversations spearheaded by activists and sex-positive organisations have time and again nudged the court, first in 2014 at the Delhi High Court, and in 2018, at the Supreme Court, laying the law to a final rest.

These conversations stress the dynamic role of sexuality in our lives, that it is not simply who we are attracted to but in what ways.

Sexuality makes us desire what we wear, how we want to look, what relationships we make, and where we find intimacy.

Sexuality tells us that sex doesn’t necessarily have to involve sexual contact – one can simply find desire in a loving company; one can find pleasure through external means such as a sex toy or erotic literature; one can be monogamous, polygamous, or stay single.

To be able to make these decisions in a safe and judgement-free manner is the mandate of a post-377 nation. To express sexuality in our fullest capacities, we should have the agency to do so in an environment that is tolerant and encouraging.

Sexuality, therefore, is not just the sexual-ness of a person, it relates to the lives we live every day.

A raging pandemic has made many LGBTQIA+ Indians seek shelter in their natal homes, isolated from their support systems and chosen families.

Our parental homes may often restrict conversations on sexuality, let alone expressing it in any form or style, either as a form of expression like wearing makeup or dressing in a non-normative way, or being in touch with your partner of choice.

In some cases, it can even take a violent turn. The discourse on sexuality is therefore more critical at this time of great turmoil.

Let this Section 377 anniversary be a moment to reckon with, a time to accelerate dialogue, create more platforms across the deepest corners of the country, amidst urban pockets and rural strongholds. It's time – to liberate sex.

(This story was first published on 6 September 2021. It has been republished from The Quint’s archives to mark four years of reading down of Section 377 by India's Supreme Court.)

(Neel Sengupta (she/her) is the Deputy Manager at Centre for Studies in Gender and Sexuality, Ashoka University. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)