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Guddugurki Anju Rao
Asst. Professor Gaana J. Nair
India’s Victorian Hangover with Section 377 of the Indian Penal Code, EST642 (A)
13th
March, 2014
Abstract
The present work throws light on Victorian morality and its suppression of
homosexuality even in private, an exercise that influenced the Indian Penal Code in
criminalizing the same. Previously plural societies like India are hung over with
Victorian values of decency, rigid heterosexuality and harsh punishments towards acts of
carnal intercourse even while the source nation has denounced them in the name of
Liberalism.The structural binary of unnatural and natural sex is analysed through
Althusser’s concept of Ideology and Subjecthood, and Derrida’ Deconstruction that
justify the said hangover of sorts. The paper is based on studies of literature taken as
secondary sources from online databases of articles, websites and blogs, newspapers,
newsportals, online magazines, discussion forums and critical theory books. The paper
provides scope for further research that may give insight into other unidentified norms of
the historical aspects of morality and sexuality, both in Britain and India.
Key words: Victorian Morality, Homosexuality, IPC Section 377, Unnatural Sex
1. Introduction:
The purpose of law is to lay down rules and regulations for the subjects of a state
applicable in the social sphere. In a passive connotation, it is to avoid the possible harm
individuals (or groups) may cause to the interests of the larger public and its “healthy” practices
that law needs to be formulated for a society, rather a nation-state in the contemporary world.
But what if such an understanding of law is marred when under its label, diktats controlling
individual private activity are passed as legit, that ultimately deny the existence of the latter?
What if laws take form in the remnants of a colonial, rather Victorian concept of arbitrary
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hypocritical morality that was brainwashed as natural truth into indigenous peoples for over two
centuries of their rule? And in the context of the research title, what if even after claimed
independence of territory and thought, the Indian State takes up the responsibility to use popular
morality as the basis of these laws for its citizens who carry varied cultural baggage and multiple
socio-cultural and political orientations?
The research carried out in this paper informs an important cultural concern - to ponder
over debates of natural and unnatural sexual activities, what defines them and what hegemonises
them. This gains significance more so after the Supreme Court of India upheld Section 377 of the
Indian Penal Code as constitutionally valid on 11th
December, 2013. The debate has been
discussed on various forums, from television news debates to full-fledged academic papers, but
the present paper gains traction in its timeliness to adolescents and early adults of present day to
look at the nuances of sexuality and morality from a contemporary individual’s point of view.
Section 377 of the Indian Penal Code titled “unnatural offences” was formulated in 1860
by Britain’s Lord Macaulay, the President of the Indian Law Commission then. Today, it is
analysed as the then coloniser’s efforts to impose Victorian values on its biggest colony among
others they ruled over (Misra 21). Though the code is applicable to heterosexual reproductive
individuals as well, it has come to concern homosexuals more- thus the frequent usage of the
term “gay sex” in mainstream media as opposed to “carnal” or “anal” sex. Such a becoming can
be regarded to the Victorian English view of homosexuality as “egregious than most other sexual
sins.” (Adut 216). The section reads as follows:
Whoever voluntarily has carnal intercourse against the order of nature
with any man, woman or animal, shall be punished with imprisonment for
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life, or with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.
Explanation.-Penetration is sufficient to constitute the carnal intercourse1
necessary to the offence described in this section (“Lawyers Collective”).
Victorian England of the 19th
century dominantly practiced sexual restraint, low tolerance
of crime and strict social code of conduct. It viewed the word “sodomy” and the like as
unmentionable or nameless crimes. Sir William Blackstone, a British jurist of the late 18th
century, wrote why he would not even mention homosexual acts in word, in his Commentaries
on the Laws of England, “I will not act so disagreeable a part, to my readers as well as to myself,
as to dwell longer upon a subject the very mention of which is a disgrace to the human nature…”
(Adut 216). This almost hysterical frame of mind towards the term, let alone the act, has seeped
down the educational, legal and political fabric of the British territory of India, which is so even
today, in ideology. The term Victorian here indicates to only those set of ethical and moral codes
that prevailed during the reign of Queen Victoria (1837-1901), that the British chose to project
off their homeland in colonies, as opposed to the conflicting and contradictory social fabric it
adorned back home. During the Regency, there was an environment of licentious allowances
before puritan control and repression took over the dynamics of social behavior in England. Then
the newly dominant bourgeoisie furthered the polished hush behind proper behavior which
gradually seeped down all classes well into the 20th century. Even common scientific
investigation, Darwinism and Sexology for examples, produced ideas of orthodox human
1
“Carnal copulation refers to the penetration of the penis into the mouth or anus of another person
or animal of the same or different sex.” (“Ask.com”)
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sexuality where the biological natural and unnatural came into play (Marsh). This is where the
emergence of a counter-culture arises. Taking root from public denial, an underground narrative
played at parallel in the 'secret world' of Victorian prostitution and pornography. A strong
homosexual counter culture with pagan approaches to sexuality was embraced to oppose moral
teachings as well as the sacrosanct nature of reproduction in being natural (Marsh). The term
pagan here refers to the allowance of plurality in sexual culture as against its rigid Christian
counterpart. England’s patriarchy and intentional naivety gains traction with another legal
(in)consideration when Queen Victoria fictionalised Lesbianism, rendering buggery impossible
between women and hence needlessness of a law for it like the Buggery Act of 1533 (Marsh). An
age full of contradictions was filtered of the contents of its make-up and through soft power,
naturalized them into so called “ignorant” populations of non-white colonies that needed to be
civilized. It is still very much intact, this mindset, as the paths chosen were science and religion,
the strongest of the conditioning lot.
This hegemony led Indian courts to include in the definition of carnal intercourse- oral
sex, in some cases other non-procreative sexual acts such as mutual masturbation (Misra 21) and
an excuse for a so called legal concern, thigh sex. The courts have not considered cunnilingus,
which is oral pleasure to a woman’s vagina, under either natural or unnatural sex because it is not
in their legal comprehension, the definition of cunnilingus. Natural or reproductive sex is defined
in general as “goal-oriented (hetero)sexual activity—e.g., by married couples or sexual
partners—which focusses on achieving pregnancy.” ("Free Dictionary by Farlex").
The European Court of Human Rights ruled in favour of the private life of its citizens,
two decades ago, when it stated that criminalising homosexual behavior was a violation of the
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former and forced Britain into accepting the same. This means that the formulator of the Indian
Penal Code is now pro-liberalism and pro-human rights while a colonially hung-over country
like India acted in denial to its myriad indigenous sensibilities when the Supreme Court upheld
Section 377 of the IPC on December 11th
, 2013, as constitutionally valid. I posit that the
Victorian era’s evangelical vehemence that looked at the Indian orient as degenerate sought to
cleanse it by propagating western morality and values (Varma, K, and Mulchandani).
I argue that homosexuality was a comfortable social reality of the pre-colonial era om
India. I argue that a set of Victorian ideas on morality have successfully swept the previously
plural mindset of India under-the-carpet, by emphasizing their invention of the binary -
natural/unnatural. I argue that despite the transformation into a gay-friendly approach, Britain’s
colonial hegemony has left Indian religious leaders and courts committed to anti-homosexuality,
even voluntary, even in private.
2. Central Argument and Theoretical Frame of Reference:
The central argument of this paper is that, the terming and divide of natural and unnatural
sex in Indian law stems from non-Indian Victorian moral codes that introduced the idea of
unnaturalness and buried the previously pluralistic non-categorical architecture of sexuality in
the region. These moral and social standards were brought into India during colonial rule and
brainwashed to the people as the right way of life, so much that India as a nation clings on to
Section 377 of the Indian Penal Code with newer post-independence justifications: that
procreative sexual acts are natural (owing to the outcome of an offspring) and those that are not
are purposeless, immoral and unlawful. The methodology adopted to critically analyse this
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arbitrary continuation of values is Louis Althusser’s theory of Ideology and Ideological State
Apparatuses, which is also an essay. He examines the relationship between the state and the
subject, the creation and maintenance of ideologies and thus illusions, the mechanisms of
repression used upon subjects and the varying nature of hegemonies suitable to varying contexts.
The critique will be followed with deconstructive questioning influenced by Jacques Derrida’s
Deconstruction, from his famous work, Of Grammatology. It will inquire upon the binary divides
in the structure of sex and sexuality, the contradictory nature of the Western humanist’s view on
sexuality and the ambiguity that emerges when it is problematized.
I have used Louis Althusser’s Ideological frame of reference, as against Marxism or
Gramsci’s Hegemony, because the repressive state mechanisms are well defined for homosexual
acts in India and 19th
century Britain. The superstructure of society like schools, family, religion
and especially law, are categorically discussed as agents of developing subjecthood by Althusser,
which would give deeper insights into the various levels at which the natural/unnatural binary is
propagated firmly.And for every binary that lingers, Derrida’s Deconstruction is the first step to
post-structuralist research. Since problematizing the rigidity of Victorian morality is my focus, I
would venture into its “rupture” (Derridan term) for the collapse of the meta physicist binary at
large. The literature obtained for this paper is based on reading of secondary sources like online
databases of articles, websites and blogs, newspapers, news portals, online magazines, discussion
forums and critical theory books.
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3. Objectives :
 To exercise caution over the hegemonies of sexuality in the postmodern globalized
world.
 To question the natural or unnatural order of things surrounding the concept of
procreation.
 To be aware of the socio-cultural fabric of India in comparison with the Indian
Judiciary and the laws that it functions by.
 To guage the vast politico-economic and historical conspiracy behind a society’s
private and public sexual life.
4. Critique and analysis:
Althusser theorises that the state is a governmental formation that arises with capitalism
protecting its interests (Klages 131-135).Critical theory insights into queer history posit that
“with the advent of bourgeois society, what was “normal” was often dictated by what was
economically viable. Therefore, men had to be manly and virile to create little children factory
workers while women had to be loving and nurturing to raise those children until they were
ready for the coal mines at the ripe age of 8.” (Wolters). This hegemony discounts the possibility
that its subjects may explore to continue the human race (adoption) and still pursue their
alternate sexual orientation, particularly in Victorian England. The idea that homosexual people
will not copulate with opposite sex seems to have been invented in Europe, 200 years ago,
despite the example of Oscar Wilde who had a wife and two sons still going to jail for sodomy in
1895, thus creating a myth that heterosexuality is natural and therefore, necessary. The nuances
of the economic lives of people at that time are illustrated as follows:
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After a population begins to industrialize, its members' beliefs, values and
behaviours start to change in characteristic ways. They start to abandon
their traditional attitudes and start to develop “modern” ones....
populations that aren’t economically developed do behave pretty much as
if they are competing for fitness. For example, families tend to have as
many children as they can afford and even quite young children are
expected to work for their living and to look after their younger brothers
and sisters... marriages became less stable, making parental partnerships
fragile. The invention of homosexuals was just one change in a
complicated change process.... But this reason for the cultural change
doesn’t make sense to Darwinists. Why would modern behaviour, small
family size and homosexuals be a natural consequence of wealth and
comfort? We are descended from people who had MORE children when
times were good, not fewer children.(Newson).
It exposes the extent to which subjects of the dominant ideology of heavy procreation did
not question it even when they could not afford to feed more than a few mouths during
Industrialisation in Britain. This exercise is a bourgeoisie effort to propagate the procreation
process beyond questioning, bringing more labour that will fund their imperialist ventures of
world-domination (Wolters). The illusion that reproduction is better for one has been created in
the name of need, morality and the idea of naturalness. As this was the fabric of the economic
base, a Marxist term, in Victorian-Industrial England, the superstructures that legitimise the
needs of the economic base become important to comprehend the extent to which the hegemonic
myth may have seeped into Indian law and society at colonisation. Such a capitalist hegemony
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coupled with the puritanical (mis)interpretation of the Old and New Testament is turned into the
biggest moral force against homosexuality.
Althusser posits that there are state mechanisms ensuring that people will behave
according to the rules of the state, whether it is best for them or not (Klages 131-135). The
defence structure, in this case the police, physically forces one to behave in accordance to the
dominant ideologies : In July 2001, four staff members from a non-governmental organization in
Lucknow working to fight HIV/AIDS among men who have sex with men (MSM) were arrested
and charged with IPC Section 377 (unnatural offences) with an imprisonment of 47 days. This
was before the Delhi High Court ruled in favour of the NAZ Foundation that wanted the
“unconstitutional” article stripped from the IPC in 2009 (Rajakdhyaksha). This is an example in
the context of how the repressive state mechanisms cannot work in vacuum, but on command
and in unison with the ideological state apparatuses.
Ideological State Apparatuses are institutions that generate ideologies which we as
individuals internalise as eternal truth (Klages 131-135). This is the superstructure that is
governed by the needs of an economic base of a state, and that comprises of schools, religions,
family system, legal system, politics etc. They will work in accordance to the needs of
capitalism. (Klages 131-135). In the curricula of Psychology around the world, the Diagnostic
and Statistical Manual for Mental Disorders is adopted as a standard guide in application. The
podophile desires feet, the nasophile desires the nose and the adipophile desires fat fleshes, all
sexual preoccupations which are pathologized as abnormal in DSM-V and taught in schools
(Wolters). Darwinism and biological determinism as mentioned earlier, are part of the scientific
discourses in education that propagate the anti-evolutionary value of homosexuality, legitimized
as unnatural in the end.
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In the realm of religion, family and society, let us look at the acknowledgement patterns
of homosexuality in India going by epics and holy books dating back to 1st
century. The
Bhagwata Purana describes an event where Lord Shiva copulates with Lord Vishnu’s incarnation
as Mohini, a female, overwhelmed by desire (Pande). Traditions of replicating homosexual
desire in literature and art were persistent in medieval Hinduism as well as Indian Islam (such a
category is posited) during the time and were understood as third nature as against deviant. Self,
according to many Hindu teachers, is genderless and all desire is the same. Though there was
minor homophobia during precolonial times, it didn’t translate into full-fledged prejudice or
criminalization of homosexuality in India. Criminality itself was not meditated upon as black or
white i.e a category per se at all (Vanita). In the postmodern world, Ruth Vanita notes that,
“rightwing Hindu groups, active both in India and the U.S., who aim to remake Hinduism as a
militant nationalist religion, express virulent opposition to homosexuality, inaccurately claiming
that it was unknown to ancient Hindus.” (Vanita). As far as Buddhism is concerned, “a sexual act
motivated by love, mutuality and the desire to give and share would be judged positive no matter
what the gender of the two persons involved.” (Dhammika). Legally, involuntary non-censual
sex is criminalized in Buddhist countries only.
Islam, however, is clear in its stance against homosexuality and carnal intercourse based
on the teachings and almost universal interpretations of the Quran and Sunnah, “It clashes with
the "natural" order in which God created human beings. It brings destruction of the family and
the institutions of marriage. It leads people to ignore God's guidance in other areas of life,” with
punishments prescribed according to jurist/judge (Huda). However, punishments are not
frequently meted out as the commission of homosexual acts are mostly private and Islam places
strong emphasis on individual’s privacy, whose fate will ultimately lie in the hands of God
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(Huda). Christianity that shares common Abrahamic roots with Islam replicates the same values
discussed here, except the latter and gains traction particularly due to Puritan-Victorian emphasis
on morality, yet again. This is because even the right to privacy is seized from individuals in the
19th
century for which, if two individuals (male, female or animal) involved in consensual or
non-consensual sex (oral sex, anal sex or mutual masturbation) are caught in private or are
reported by witnesses for the act can be persecuted, imprisoned, fined or sentenced to death.
And despite the clarity on their arbitrariness and the resultant acceptance that Britain
today has of human-rights and gay marriages, the draconian values persist strongly, backed by
religious authorities who have come to (mis)interpret their holy texts in Victorian mind frames,
far removed from its previous connotations. Among the many aspects of the body and the mind
that the Panchatantra (dating between 1st
and 6th
centuries in the Indian region) acknowledges the
occurring of, when the stomach of “creatures” is full, carnal sex is categorically mentioned.
Evidence of fragmented untitled love poems acknowledging and appreciating the same were
written until the 16th
century. But after the first war of Indian Independence in 1857, the British
had found firm administrative ground not only over political rule and bureaucracy, but over the
sexual private and public life of society, terming its pluralistic eastern tradition as barbaric and
inferior. Movements like the Brahmo Samaj and the Prarthana Samaj seemed to try and re-form
Indian private and public life, but found direction into reforming them into the same puritanical
standards Victorian morality demanded, in unison with the propagation of English education,
widow-remarriages and the new consciousness of the Indian ambivalent- being the non-white
white (Chakraborty, and Guha Thakurata 250-255).
Despite the presence of various researches that go into the nuances of pre-colonial and
postcolonial India, the religious community as on 2013 are “delighted” with the Supreme Court
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of India’s decision to uphold Section 377 of the IPC. It claims that Hindu, Muslim, Christian,
Sikh and Jain communities welcome the decision, as quoted in a local religious news portal :
The decision of the Supreme Court on Article 377 is not only in line with
the eastern traditions of this country, moral values and religious teachings
but it also removes apprehensions about invasion of western culture and
disintegration of family system and fabric of social life... The Constitution
of the country has rightly described homosexuality as a punishable
offence. It is because homosexuality not only prevents evolution and
progress of human race but also destroys family system and social
relations. Moreover, it is a great danger to public health. Medical research
has also found it as a basic reason for the spread of AIDS… With this
historic decision, the apex court has kept the country from going on to the
path of destruction. We are concerned that lovers of western culture, in the
name of individual freedom, minority rights and other lame excuses, are
putting pressure on political parties and governments for amendment in
the law so that this shameless and criminal offence could be legalized.
(Muslim Mirror).
An ideology becomes an ideological state apparatus when it becomes enforceable i.e.
when the legal system upholds an ideology as enforceable in case of the verdict of 11th
December, 2013. And from the listed variations of religious interpretations, Althusser’s claim
that ideologies vary over time to suit the needs of economic asking becomes strengthened. It
varies because there is no one reality or one truth, but only the Imaginary Relationship of
Individuals to the Real (Klages 131-135). Individuals tell each other and themselves stories
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regarding how certain things are good and certain others bad, to create ideologies or world-views
so that the stark reality of life can be avoided- in Althusser’s understanding it is the capitalist
interests of a few individuals that nullifies all naivety that the world has imbibed to escape the
truths of alienation (Klages 131-135).
Althusser’s concept of Interpellation sums up the subjecthood of individuals to the state
when the former respond to the calls of the latter and act to maintain state agenda (Klages 131-
135). India’s Bharatiya Janata Party , a right-wing nationalist political party, released a delayed
statement in the news media favouring the Supreme Court’s criminalisation of homosexual acts
as “gay sex is unnatural.” Party workers, aspiring party candidates and by extension a large part
of the right-wing subject will acknowledge their subjecthood to this view, as it is an
interpellation to all those to abide by the same if their lives must function smoothly under BJP’s
regime. Politics, religion and science as ISAs get people to believe in the goodness and
truthfulness of the state making all subjects to the dominant ideologies by extension.
The Structural anomalies and nuances of such a massive undertaking of ideological and
repressive mechanisms can be done using Derrida’s Deconstruction. It is a way of reading or
seeing structures that already exist in and around individuals, driven by ideological hierarchy or
hegemony. These structures have a centre and the subjects or elements of that structure gather in
a pair or in a binary on either side of the centre, like centripetal and centrifugal forces. One part
of the pair always has a high cultural value and marked as positive as against the other which is
degenerate or uncultured and negative. This binary division, according to Jacques Derrida, is a
fall-out of Western metaphysical thought which is Victorian Puritanical morality in this context
(Klages 53-62).
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My central argument that focussed on the binary of natural and unnatural sex figures in
the structure of sexuality. This structure is filled with multiple ideologies about sexuality, be it
the way one feels about their bodies, about other bodies or the union of two or more bodies (one
is only capable of limited perspective for enlisting). The centre of this structure is the concept of
procreation (the centre may change based on frame of references). With procreation and
procreative acts at the centre, around it are elements that the Western meta physicist thought
would allow categorisation into: natural and unnatural sex. This is a binary in Victorian moral
standards as the frame of reference posits natural sex as positive, good, cultured, right, fair etc. ,
while unnatural sex is negative, bad, uncultured, wrong, dark etc. This structural binary that was
an integral part of Britain’s sexual norms came into India during colonisation and was dictated in
soft-power terms through education, science, religion, politics and law as discussed earlier. The
structure is now limiting of any exchange between the pairs of elements. For example an element
of oral sex will not and should not enter the natural act of missionary sexual intercourse as it has
to go via the centre which is procreation. The centre does not allow its trespassing and hence
strengthens both binaries within themselves and not across. This leads to culture and counter-
culture, where the former is dominant and the latter is almost oppressed and driven underground,
instead of a completely ambiguous, multiple and plural way of life. It is important to note that
the introduction of the concept of natural and unnatural sex (black and white) to non-western or
oriental regions concepts of sexuality (gray as established earlier) itself is a culturalised
endeavour and not a natural one. Infact natural sex can only be understood now as a given due to
its negation with “unnatural sex.” The latter’s existence to the Victorian British or the
Victorianised Indian becomes necessary to affirm the former’s existence and carry on the
subjecthood process of individuals to conform to the idea of natural sex, as in the case of an
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underground counterculture of prostitution and pornography in Victorian England. These are the
loopholes in the discourse of natural sex that contradict itself and shake its foundation when
inquired upon by a critical thinker and not a mere subject. The purpose of Deconstruction, as
Derrida would have it, is the rupture of the rigidity of a structure that will cause the collapse of
the binary and bring in ambiguity. The centre may not hold itself either with the dynamic nature
of its elements leading to crumbling of the ideology or frame of reference that governs that
structure.
5. Conclusion:
I draw my attention at the end to Perception- the heart of the matter. If one sanctifies the act
of reproduction, the continuation of the human species as the prime goal of survival and
existence justified in nineteenth century science like genetic studies, the “will of God” to indulge
in penile-vaginal male-female sexual acts only because the result of such copulation is another
life, as opposed to simply the desire to do so? And life, unarguably, keeps producing individuals,
rather subjects who will ultimately be audiences to religion, who will follow it and keep the
streak alive, failing which the entire institution of religion will fail, beliefs will crumble,
humanity will seize to exist and the world will near doom? What is intriguing is that banning or
punishing homosexual acts justified as the will of God, to religious interpreters, seems to save
heterosexual sexual activity from extinction. To pluralist individuals of the live-and-let-live
philosophy, the fear of such an end is far-fetched when multiple sexual orientations could thrive
without constraints. Otherwise, alternate sexual orientations will take the underground path
which may lead to the uncontrollable spread of diseases such as HIV, that could otherwise be
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controlled to a large extent. In this case, if homosexual activity is decriminalised, the medical
conditions that may result of it will be addressed at health-care institutions without prejudice (a
time-consuming process but workable). Dr. L Ramakrishnan of Solidarity and Action Against
the HIV Infection in India was quoted in Times of India after the Supreme Court’s repressive
verdict was out as “In the early days it was very hard to get MSMs (men having sex with men) to
health units as they feared police action. This changed only after the Delhi HC judgement. But
the apex court's judgement is likely to give legal backing to the biases of healthcare professionals
and could fuel their discriminatory attitudes.” (Rajadhyaksha). Denying medical help will lead to
more secretive chaos and ultimately to the “destruction of human race,” feared by Victorianists,
in the form of unattended health concerns of a considerable amount of population – 2.5 million
in India today.
In the purview of the legal developments i.e the Supreme Court’s upholding of Section 377
of the Indian Penal Code in December 2013, and the rejection of its judicial review petition in
January 2014, post structural studies such as this can only hope to problematize colonial morality
and naturalness. Even if the capitalist agenda of upholding rigid binaries continue, there may be
epidemics approaching as a result of sexual oppression, which will ultimately lead to the much
dread destruction of humanity. Identity politics of the body is all the more unnatural- to deny
one’s natural way of being.
6. Limitations and Scope for further research :
The paper houses ambiguity in the way the term India is treated: sometimes as an ancient
region or collection of regions and other times as Althusser’s nation-state that needs law. Perhaps
uniformity could be maintained throughout in further researchers. The dominant historical forces
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of morality and sexuality were considered from both in Britain and India, that left little chance
for sub-ordinate forces to oppose the critique itself : the emergence of a strong counter culture is
a good enough opposition to its dominant culture, which was not investigated deeply here.
Similarly, there may be variations in the way individuals, as opposed to entire cultures, looked at
sexuality. Vatsyayana’s Kamasutra may be a scientific aphorism on love, not digested well due
to other unidentified indigenous socio-cultural reasons or norms, which could be explored into as
possible limitations. A category called Indian Islam is posited in the literatures of those web
portals that introduced India as a religious land. This term is unclear as there have been no
studies in my research that illustrate this type of Islam, except slight Sufi markers in some places
that still doesn’t sum up the coinage. Perhaps a hybrid of such nature can be researched upon for
further clarity. The paper is dominated by literature on religion as compared to the politics of
science which may bes a possible contributor to Victorian hangover in India
Section 377 of the Indian Penal Code criminalises carnal intercourse between man woman or
animal, while this paper looks at Men having sex with Men (MSM) in particular. How the law
must affect the private lives of couples, whether married or not, has not been scrutinised in this
paper owing to its allegiance to my queer sensibilities. This may acquire a relatively netural
nature to further researches.
7. Bibliography:
Misra, Geetanjali. “Decriminalising Homosexuality In India.” Reproductive Health Matters
17.34 (2009): 20-38. JSTOR. PDF file.
Adut, Ari. “A Theory of Scandal: Victorians, Homosexuality, and the Fall of Oscar Wilde.” American
Journal of Sociology 111. 1 ( 2005): 213-248. JSTOR. PDF file.
"LGBT Section 377." Lawyers Collective. 23 Nov 2010: n. pag. Web. 12 Mar. 2014. <http://
www.lawyerscollective.org/vulnerable-communities/lgbt/section-377.html>.
"What Does Carnal Copulation Mean?." Ask.com. Ask, 2014. Web. 12 Mar. 2014. <http://www.ask.com/
question/what-does-carnal-copulation-mean>.
"Reproductive Sex." The Free Dictionary by Farlex. The Free Dictionary, n.d. Web. 12 Mar 2014. <
http://medical-dictionary.thefreedictionary.com/Natural+Sex>.
.
Klages, Mary. Introduction to Literary Theory. Bangalore: Christ University, 2012. 131-135. Print.
Wolters, Eugene. "What the Fuck is Queer Theory?." Critical-Theory.com. (2013): n. page. Web. 12 Mar.
2014. <http://www.critical-theory.com/what-the-fuck-is-queer-theory/>.
Rajakdhyaksha, Madhavi. "Supreme Court verdict on IPC section 377 impedes fight against HIV/AIDS."
Times of India [Mumbai] 12 12 2013, National n. pag. Web. 12 Mar. 2014. <http://
timesofindia.indiatimes.com/india/Supreme-Court-verdict-on-IPC-section-377-impedes-fight-against-
HIV/AIDS/articleshow/27236005.cms>.
Klages, Mary. Introduction to Literary Theory. Bangalore: Christ University, 2012. 53-106. Print.
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Chakraborty, Kaustav, and Rajarshi Guha Thakurata. "Indian concepts on sexuality." Indian Journal of
Psychiatry. 55.2 (2013): 250-255. Web. 12 Mar. 2014. <http://www.ncbi.nlm.nih.gov/pmc/articles/
PMC3705691/>.
"Religious leaders welcome Supreme Court verdict on Article 377." Muslim Mirror [New Delhi] 19 12
2013, Indian Muslim n. pag. Web. 12 Mar. 2014. <http://muslimmirror.com/eng/jain-religious-leaders-
welcome-supreme-court-verdict-on-article-377-and-warns-govt-against-legalizing-homosexuality/>.
Varma, Pavan K., and Sandhya Mulchandani. "Book View : Love and Lust: An Anthology of Erotic Liter-
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India’s Victorian Hangover with Section 377 of the Indian Penal Code - By Anju Rao Guddugurki

  • 1. Rao 1 Guddugurki Anju Rao Asst. Professor Gaana J. Nair India’s Victorian Hangover with Section 377 of the Indian Penal Code, EST642 (A) 13th March, 2014 Abstract The present work throws light on Victorian morality and its suppression of homosexuality even in private, an exercise that influenced the Indian Penal Code in criminalizing the same. Previously plural societies like India are hung over with Victorian values of decency, rigid heterosexuality and harsh punishments towards acts of carnal intercourse even while the source nation has denounced them in the name of Liberalism.The structural binary of unnatural and natural sex is analysed through Althusser’s concept of Ideology and Subjecthood, and Derrida’ Deconstruction that justify the said hangover of sorts. The paper is based on studies of literature taken as secondary sources from online databases of articles, websites and blogs, newspapers, newsportals, online magazines, discussion forums and critical theory books. The paper provides scope for further research that may give insight into other unidentified norms of the historical aspects of morality and sexuality, both in Britain and India. Key words: Victorian Morality, Homosexuality, IPC Section 377, Unnatural Sex 1. Introduction: The purpose of law is to lay down rules and regulations for the subjects of a state applicable in the social sphere. In a passive connotation, it is to avoid the possible harm individuals (or groups) may cause to the interests of the larger public and its “healthy” practices that law needs to be formulated for a society, rather a nation-state in the contemporary world. But what if such an understanding of law is marred when under its label, diktats controlling individual private activity are passed as legit, that ultimately deny the existence of the latter? What if laws take form in the remnants of a colonial, rather Victorian concept of arbitrary
  • 2. Rao 2 hypocritical morality that was brainwashed as natural truth into indigenous peoples for over two centuries of their rule? And in the context of the research title, what if even after claimed independence of territory and thought, the Indian State takes up the responsibility to use popular morality as the basis of these laws for its citizens who carry varied cultural baggage and multiple socio-cultural and political orientations? The research carried out in this paper informs an important cultural concern - to ponder over debates of natural and unnatural sexual activities, what defines them and what hegemonises them. This gains significance more so after the Supreme Court of India upheld Section 377 of the Indian Penal Code as constitutionally valid on 11th December, 2013. The debate has been discussed on various forums, from television news debates to full-fledged academic papers, but the present paper gains traction in its timeliness to adolescents and early adults of present day to look at the nuances of sexuality and morality from a contemporary individual’s point of view. Section 377 of the Indian Penal Code titled “unnatural offences” was formulated in 1860 by Britain’s Lord Macaulay, the President of the Indian Law Commission then. Today, it is analysed as the then coloniser’s efforts to impose Victorian values on its biggest colony among others they ruled over (Misra 21). Though the code is applicable to heterosexual reproductive individuals as well, it has come to concern homosexuals more- thus the frequent usage of the term “gay sex” in mainstream media as opposed to “carnal” or “anal” sex. Such a becoming can be regarded to the Victorian English view of homosexuality as “egregious than most other sexual sins.” (Adut 216). The section reads as follows: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for
  • 3. Rao 3 life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.-Penetration is sufficient to constitute the carnal intercourse1 necessary to the offence described in this section (“Lawyers Collective”). Victorian England of the 19th century dominantly practiced sexual restraint, low tolerance of crime and strict social code of conduct. It viewed the word “sodomy” and the like as unmentionable or nameless crimes. Sir William Blackstone, a British jurist of the late 18th century, wrote why he would not even mention homosexual acts in word, in his Commentaries on the Laws of England, “I will not act so disagreeable a part, to my readers as well as to myself, as to dwell longer upon a subject the very mention of which is a disgrace to the human nature…” (Adut 216). This almost hysterical frame of mind towards the term, let alone the act, has seeped down the educational, legal and political fabric of the British territory of India, which is so even today, in ideology. The term Victorian here indicates to only those set of ethical and moral codes that prevailed during the reign of Queen Victoria (1837-1901), that the British chose to project off their homeland in colonies, as opposed to the conflicting and contradictory social fabric it adorned back home. During the Regency, there was an environment of licentious allowances before puritan control and repression took over the dynamics of social behavior in England. Then the newly dominant bourgeoisie furthered the polished hush behind proper behavior which gradually seeped down all classes well into the 20th century. Even common scientific investigation, Darwinism and Sexology for examples, produced ideas of orthodox human 1 “Carnal copulation refers to the penetration of the penis into the mouth or anus of another person or animal of the same or different sex.” (“Ask.com”)
  • 4. Rao 4 sexuality where the biological natural and unnatural came into play (Marsh). This is where the emergence of a counter-culture arises. Taking root from public denial, an underground narrative played at parallel in the 'secret world' of Victorian prostitution and pornography. A strong homosexual counter culture with pagan approaches to sexuality was embraced to oppose moral teachings as well as the sacrosanct nature of reproduction in being natural (Marsh). The term pagan here refers to the allowance of plurality in sexual culture as against its rigid Christian counterpart. England’s patriarchy and intentional naivety gains traction with another legal (in)consideration when Queen Victoria fictionalised Lesbianism, rendering buggery impossible between women and hence needlessness of a law for it like the Buggery Act of 1533 (Marsh). An age full of contradictions was filtered of the contents of its make-up and through soft power, naturalized them into so called “ignorant” populations of non-white colonies that needed to be civilized. It is still very much intact, this mindset, as the paths chosen were science and religion, the strongest of the conditioning lot. This hegemony led Indian courts to include in the definition of carnal intercourse- oral sex, in some cases other non-procreative sexual acts such as mutual masturbation (Misra 21) and an excuse for a so called legal concern, thigh sex. The courts have not considered cunnilingus, which is oral pleasure to a woman’s vagina, under either natural or unnatural sex because it is not in their legal comprehension, the definition of cunnilingus. Natural or reproductive sex is defined in general as “goal-oriented (hetero)sexual activity—e.g., by married couples or sexual partners—which focusses on achieving pregnancy.” ("Free Dictionary by Farlex"). The European Court of Human Rights ruled in favour of the private life of its citizens, two decades ago, when it stated that criminalising homosexual behavior was a violation of the
  • 5. Rao 5 former and forced Britain into accepting the same. This means that the formulator of the Indian Penal Code is now pro-liberalism and pro-human rights while a colonially hung-over country like India acted in denial to its myriad indigenous sensibilities when the Supreme Court upheld Section 377 of the IPC on December 11th , 2013, as constitutionally valid. I posit that the Victorian era’s evangelical vehemence that looked at the Indian orient as degenerate sought to cleanse it by propagating western morality and values (Varma, K, and Mulchandani). I argue that homosexuality was a comfortable social reality of the pre-colonial era om India. I argue that a set of Victorian ideas on morality have successfully swept the previously plural mindset of India under-the-carpet, by emphasizing their invention of the binary - natural/unnatural. I argue that despite the transformation into a gay-friendly approach, Britain’s colonial hegemony has left Indian religious leaders and courts committed to anti-homosexuality, even voluntary, even in private. 2. Central Argument and Theoretical Frame of Reference: The central argument of this paper is that, the terming and divide of natural and unnatural sex in Indian law stems from non-Indian Victorian moral codes that introduced the idea of unnaturalness and buried the previously pluralistic non-categorical architecture of sexuality in the region. These moral and social standards were brought into India during colonial rule and brainwashed to the people as the right way of life, so much that India as a nation clings on to Section 377 of the Indian Penal Code with newer post-independence justifications: that procreative sexual acts are natural (owing to the outcome of an offspring) and those that are not are purposeless, immoral and unlawful. The methodology adopted to critically analyse this
  • 6. Rao 6 arbitrary continuation of values is Louis Althusser’s theory of Ideology and Ideological State Apparatuses, which is also an essay. He examines the relationship between the state and the subject, the creation and maintenance of ideologies and thus illusions, the mechanisms of repression used upon subjects and the varying nature of hegemonies suitable to varying contexts. The critique will be followed with deconstructive questioning influenced by Jacques Derrida’s Deconstruction, from his famous work, Of Grammatology. It will inquire upon the binary divides in the structure of sex and sexuality, the contradictory nature of the Western humanist’s view on sexuality and the ambiguity that emerges when it is problematized. I have used Louis Althusser’s Ideological frame of reference, as against Marxism or Gramsci’s Hegemony, because the repressive state mechanisms are well defined for homosexual acts in India and 19th century Britain. The superstructure of society like schools, family, religion and especially law, are categorically discussed as agents of developing subjecthood by Althusser, which would give deeper insights into the various levels at which the natural/unnatural binary is propagated firmly.And for every binary that lingers, Derrida’s Deconstruction is the first step to post-structuralist research. Since problematizing the rigidity of Victorian morality is my focus, I would venture into its “rupture” (Derridan term) for the collapse of the meta physicist binary at large. The literature obtained for this paper is based on reading of secondary sources like online databases of articles, websites and blogs, newspapers, news portals, online magazines, discussion forums and critical theory books.
  • 7. Rao 7 3. Objectives :  To exercise caution over the hegemonies of sexuality in the postmodern globalized world.  To question the natural or unnatural order of things surrounding the concept of procreation.  To be aware of the socio-cultural fabric of India in comparison with the Indian Judiciary and the laws that it functions by.  To guage the vast politico-economic and historical conspiracy behind a society’s private and public sexual life. 4. Critique and analysis: Althusser theorises that the state is a governmental formation that arises with capitalism protecting its interests (Klages 131-135).Critical theory insights into queer history posit that “with the advent of bourgeois society, what was “normal” was often dictated by what was economically viable. Therefore, men had to be manly and virile to create little children factory workers while women had to be loving and nurturing to raise those children until they were ready for the coal mines at the ripe age of 8.” (Wolters). This hegemony discounts the possibility that its subjects may explore to continue the human race (adoption) and still pursue their alternate sexual orientation, particularly in Victorian England. The idea that homosexual people will not copulate with opposite sex seems to have been invented in Europe, 200 years ago, despite the example of Oscar Wilde who had a wife and two sons still going to jail for sodomy in 1895, thus creating a myth that heterosexuality is natural and therefore, necessary. The nuances of the economic lives of people at that time are illustrated as follows:
  • 8. Rao 8 After a population begins to industrialize, its members' beliefs, values and behaviours start to change in characteristic ways. They start to abandon their traditional attitudes and start to develop “modern” ones.... populations that aren’t economically developed do behave pretty much as if they are competing for fitness. For example, families tend to have as many children as they can afford and even quite young children are expected to work for their living and to look after their younger brothers and sisters... marriages became less stable, making parental partnerships fragile. The invention of homosexuals was just one change in a complicated change process.... But this reason for the cultural change doesn’t make sense to Darwinists. Why would modern behaviour, small family size and homosexuals be a natural consequence of wealth and comfort? We are descended from people who had MORE children when times were good, not fewer children.(Newson). It exposes the extent to which subjects of the dominant ideology of heavy procreation did not question it even when they could not afford to feed more than a few mouths during Industrialisation in Britain. This exercise is a bourgeoisie effort to propagate the procreation process beyond questioning, bringing more labour that will fund their imperialist ventures of world-domination (Wolters). The illusion that reproduction is better for one has been created in the name of need, morality and the idea of naturalness. As this was the fabric of the economic base, a Marxist term, in Victorian-Industrial England, the superstructures that legitimise the needs of the economic base become important to comprehend the extent to which the hegemonic myth may have seeped into Indian law and society at colonisation. Such a capitalist hegemony
  • 9. Rao 9 coupled with the puritanical (mis)interpretation of the Old and New Testament is turned into the biggest moral force against homosexuality. Althusser posits that there are state mechanisms ensuring that people will behave according to the rules of the state, whether it is best for them or not (Klages 131-135). The defence structure, in this case the police, physically forces one to behave in accordance to the dominant ideologies : In July 2001, four staff members from a non-governmental organization in Lucknow working to fight HIV/AIDS among men who have sex with men (MSM) were arrested and charged with IPC Section 377 (unnatural offences) with an imprisonment of 47 days. This was before the Delhi High Court ruled in favour of the NAZ Foundation that wanted the “unconstitutional” article stripped from the IPC in 2009 (Rajakdhyaksha). This is an example in the context of how the repressive state mechanisms cannot work in vacuum, but on command and in unison with the ideological state apparatuses. Ideological State Apparatuses are institutions that generate ideologies which we as individuals internalise as eternal truth (Klages 131-135). This is the superstructure that is governed by the needs of an economic base of a state, and that comprises of schools, religions, family system, legal system, politics etc. They will work in accordance to the needs of capitalism. (Klages 131-135). In the curricula of Psychology around the world, the Diagnostic and Statistical Manual for Mental Disorders is adopted as a standard guide in application. The podophile desires feet, the nasophile desires the nose and the adipophile desires fat fleshes, all sexual preoccupations which are pathologized as abnormal in DSM-V and taught in schools (Wolters). Darwinism and biological determinism as mentioned earlier, are part of the scientific discourses in education that propagate the anti-evolutionary value of homosexuality, legitimized as unnatural in the end.
  • 10. Rao 10 In the realm of religion, family and society, let us look at the acknowledgement patterns of homosexuality in India going by epics and holy books dating back to 1st century. The Bhagwata Purana describes an event where Lord Shiva copulates with Lord Vishnu’s incarnation as Mohini, a female, overwhelmed by desire (Pande). Traditions of replicating homosexual desire in literature and art were persistent in medieval Hinduism as well as Indian Islam (such a category is posited) during the time and were understood as third nature as against deviant. Self, according to many Hindu teachers, is genderless and all desire is the same. Though there was minor homophobia during precolonial times, it didn’t translate into full-fledged prejudice or criminalization of homosexuality in India. Criminality itself was not meditated upon as black or white i.e a category per se at all (Vanita). In the postmodern world, Ruth Vanita notes that, “rightwing Hindu groups, active both in India and the U.S., who aim to remake Hinduism as a militant nationalist religion, express virulent opposition to homosexuality, inaccurately claiming that it was unknown to ancient Hindus.” (Vanita). As far as Buddhism is concerned, “a sexual act motivated by love, mutuality and the desire to give and share would be judged positive no matter what the gender of the two persons involved.” (Dhammika). Legally, involuntary non-censual sex is criminalized in Buddhist countries only. Islam, however, is clear in its stance against homosexuality and carnal intercourse based on the teachings and almost universal interpretations of the Quran and Sunnah, “It clashes with the "natural" order in which God created human beings. It brings destruction of the family and the institutions of marriage. It leads people to ignore God's guidance in other areas of life,” with punishments prescribed according to jurist/judge (Huda). However, punishments are not frequently meted out as the commission of homosexual acts are mostly private and Islam places strong emphasis on individual’s privacy, whose fate will ultimately lie in the hands of God
  • 11. Rao 11 (Huda). Christianity that shares common Abrahamic roots with Islam replicates the same values discussed here, except the latter and gains traction particularly due to Puritan-Victorian emphasis on morality, yet again. This is because even the right to privacy is seized from individuals in the 19th century for which, if two individuals (male, female or animal) involved in consensual or non-consensual sex (oral sex, anal sex or mutual masturbation) are caught in private or are reported by witnesses for the act can be persecuted, imprisoned, fined or sentenced to death. And despite the clarity on their arbitrariness and the resultant acceptance that Britain today has of human-rights and gay marriages, the draconian values persist strongly, backed by religious authorities who have come to (mis)interpret their holy texts in Victorian mind frames, far removed from its previous connotations. Among the many aspects of the body and the mind that the Panchatantra (dating between 1st and 6th centuries in the Indian region) acknowledges the occurring of, when the stomach of “creatures” is full, carnal sex is categorically mentioned. Evidence of fragmented untitled love poems acknowledging and appreciating the same were written until the 16th century. But after the first war of Indian Independence in 1857, the British had found firm administrative ground not only over political rule and bureaucracy, but over the sexual private and public life of society, terming its pluralistic eastern tradition as barbaric and inferior. Movements like the Brahmo Samaj and the Prarthana Samaj seemed to try and re-form Indian private and public life, but found direction into reforming them into the same puritanical standards Victorian morality demanded, in unison with the propagation of English education, widow-remarriages and the new consciousness of the Indian ambivalent- being the non-white white (Chakraborty, and Guha Thakurata 250-255). Despite the presence of various researches that go into the nuances of pre-colonial and postcolonial India, the religious community as on 2013 are “delighted” with the Supreme Court
  • 12. Rao 12 of India’s decision to uphold Section 377 of the IPC. It claims that Hindu, Muslim, Christian, Sikh and Jain communities welcome the decision, as quoted in a local religious news portal : The decision of the Supreme Court on Article 377 is not only in line with the eastern traditions of this country, moral values and religious teachings but it also removes apprehensions about invasion of western culture and disintegration of family system and fabric of social life... The Constitution of the country has rightly described homosexuality as a punishable offence. It is because homosexuality not only prevents evolution and progress of human race but also destroys family system and social relations. Moreover, it is a great danger to public health. Medical research has also found it as a basic reason for the spread of AIDS… With this historic decision, the apex court has kept the country from going on to the path of destruction. We are concerned that lovers of western culture, in the name of individual freedom, minority rights and other lame excuses, are putting pressure on political parties and governments for amendment in the law so that this shameless and criminal offence could be legalized. (Muslim Mirror). An ideology becomes an ideological state apparatus when it becomes enforceable i.e. when the legal system upholds an ideology as enforceable in case of the verdict of 11th December, 2013. And from the listed variations of religious interpretations, Althusser’s claim that ideologies vary over time to suit the needs of economic asking becomes strengthened. It varies because there is no one reality or one truth, but only the Imaginary Relationship of Individuals to the Real (Klages 131-135). Individuals tell each other and themselves stories
  • 13. Rao 13 regarding how certain things are good and certain others bad, to create ideologies or world-views so that the stark reality of life can be avoided- in Althusser’s understanding it is the capitalist interests of a few individuals that nullifies all naivety that the world has imbibed to escape the truths of alienation (Klages 131-135). Althusser’s concept of Interpellation sums up the subjecthood of individuals to the state when the former respond to the calls of the latter and act to maintain state agenda (Klages 131- 135). India’s Bharatiya Janata Party , a right-wing nationalist political party, released a delayed statement in the news media favouring the Supreme Court’s criminalisation of homosexual acts as “gay sex is unnatural.” Party workers, aspiring party candidates and by extension a large part of the right-wing subject will acknowledge their subjecthood to this view, as it is an interpellation to all those to abide by the same if their lives must function smoothly under BJP’s regime. Politics, religion and science as ISAs get people to believe in the goodness and truthfulness of the state making all subjects to the dominant ideologies by extension. The Structural anomalies and nuances of such a massive undertaking of ideological and repressive mechanisms can be done using Derrida’s Deconstruction. It is a way of reading or seeing structures that already exist in and around individuals, driven by ideological hierarchy or hegemony. These structures have a centre and the subjects or elements of that structure gather in a pair or in a binary on either side of the centre, like centripetal and centrifugal forces. One part of the pair always has a high cultural value and marked as positive as against the other which is degenerate or uncultured and negative. This binary division, according to Jacques Derrida, is a fall-out of Western metaphysical thought which is Victorian Puritanical morality in this context (Klages 53-62).
  • 14. Rao 14 My central argument that focussed on the binary of natural and unnatural sex figures in the structure of sexuality. This structure is filled with multiple ideologies about sexuality, be it the way one feels about their bodies, about other bodies or the union of two or more bodies (one is only capable of limited perspective for enlisting). The centre of this structure is the concept of procreation (the centre may change based on frame of references). With procreation and procreative acts at the centre, around it are elements that the Western meta physicist thought would allow categorisation into: natural and unnatural sex. This is a binary in Victorian moral standards as the frame of reference posits natural sex as positive, good, cultured, right, fair etc. , while unnatural sex is negative, bad, uncultured, wrong, dark etc. This structural binary that was an integral part of Britain’s sexual norms came into India during colonisation and was dictated in soft-power terms through education, science, religion, politics and law as discussed earlier. The structure is now limiting of any exchange between the pairs of elements. For example an element of oral sex will not and should not enter the natural act of missionary sexual intercourse as it has to go via the centre which is procreation. The centre does not allow its trespassing and hence strengthens both binaries within themselves and not across. This leads to culture and counter- culture, where the former is dominant and the latter is almost oppressed and driven underground, instead of a completely ambiguous, multiple and plural way of life. It is important to note that the introduction of the concept of natural and unnatural sex (black and white) to non-western or oriental regions concepts of sexuality (gray as established earlier) itself is a culturalised endeavour and not a natural one. Infact natural sex can only be understood now as a given due to its negation with “unnatural sex.” The latter’s existence to the Victorian British or the Victorianised Indian becomes necessary to affirm the former’s existence and carry on the subjecthood process of individuals to conform to the idea of natural sex, as in the case of an
  • 15. Rao 15 underground counterculture of prostitution and pornography in Victorian England. These are the loopholes in the discourse of natural sex that contradict itself and shake its foundation when inquired upon by a critical thinker and not a mere subject. The purpose of Deconstruction, as Derrida would have it, is the rupture of the rigidity of a structure that will cause the collapse of the binary and bring in ambiguity. The centre may not hold itself either with the dynamic nature of its elements leading to crumbling of the ideology or frame of reference that governs that structure. 5. Conclusion: I draw my attention at the end to Perception- the heart of the matter. If one sanctifies the act of reproduction, the continuation of the human species as the prime goal of survival and existence justified in nineteenth century science like genetic studies, the “will of God” to indulge in penile-vaginal male-female sexual acts only because the result of such copulation is another life, as opposed to simply the desire to do so? And life, unarguably, keeps producing individuals, rather subjects who will ultimately be audiences to religion, who will follow it and keep the streak alive, failing which the entire institution of religion will fail, beliefs will crumble, humanity will seize to exist and the world will near doom? What is intriguing is that banning or punishing homosexual acts justified as the will of God, to religious interpreters, seems to save heterosexual sexual activity from extinction. To pluralist individuals of the live-and-let-live philosophy, the fear of such an end is far-fetched when multiple sexual orientations could thrive without constraints. Otherwise, alternate sexual orientations will take the underground path which may lead to the uncontrollable spread of diseases such as HIV, that could otherwise be
  • 16. Rao 16 controlled to a large extent. In this case, if homosexual activity is decriminalised, the medical conditions that may result of it will be addressed at health-care institutions without prejudice (a time-consuming process but workable). Dr. L Ramakrishnan of Solidarity and Action Against the HIV Infection in India was quoted in Times of India after the Supreme Court’s repressive verdict was out as “In the early days it was very hard to get MSMs (men having sex with men) to health units as they feared police action. This changed only after the Delhi HC judgement. But the apex court's judgement is likely to give legal backing to the biases of healthcare professionals and could fuel their discriminatory attitudes.” (Rajadhyaksha). Denying medical help will lead to more secretive chaos and ultimately to the “destruction of human race,” feared by Victorianists, in the form of unattended health concerns of a considerable amount of population – 2.5 million in India today. In the purview of the legal developments i.e the Supreme Court’s upholding of Section 377 of the Indian Penal Code in December 2013, and the rejection of its judicial review petition in January 2014, post structural studies such as this can only hope to problematize colonial morality and naturalness. Even if the capitalist agenda of upholding rigid binaries continue, there may be epidemics approaching as a result of sexual oppression, which will ultimately lead to the much dread destruction of humanity. Identity politics of the body is all the more unnatural- to deny one’s natural way of being. 6. Limitations and Scope for further research : The paper houses ambiguity in the way the term India is treated: sometimes as an ancient region or collection of regions and other times as Althusser’s nation-state that needs law. Perhaps uniformity could be maintained throughout in further researchers. The dominant historical forces
  • 17. Rao 17 of morality and sexuality were considered from both in Britain and India, that left little chance for sub-ordinate forces to oppose the critique itself : the emergence of a strong counter culture is a good enough opposition to its dominant culture, which was not investigated deeply here. Similarly, there may be variations in the way individuals, as opposed to entire cultures, looked at sexuality. Vatsyayana’s Kamasutra may be a scientific aphorism on love, not digested well due to other unidentified indigenous socio-cultural reasons or norms, which could be explored into as possible limitations. A category called Indian Islam is posited in the literatures of those web portals that introduced India as a religious land. This term is unclear as there have been no studies in my research that illustrate this type of Islam, except slight Sufi markers in some places that still doesn’t sum up the coinage. Perhaps a hybrid of such nature can be researched upon for further clarity. The paper is dominated by literature on religion as compared to the politics of science which may bes a possible contributor to Victorian hangover in India Section 377 of the Indian Penal Code criminalises carnal intercourse between man woman or animal, while this paper looks at Men having sex with Men (MSM) in particular. How the law must affect the private lives of couples, whether married or not, has not been scrutinised in this paper owing to its allegiance to my queer sensibilities. This may acquire a relatively netural nature to further researches.
  • 18. 7. Bibliography: Misra, Geetanjali. “Decriminalising Homosexuality In India.” Reproductive Health Matters 17.34 (2009): 20-38. JSTOR. PDF file. Adut, Ari. “A Theory of Scandal: Victorians, Homosexuality, and the Fall of Oscar Wilde.” American Journal of Sociology 111. 1 ( 2005): 213-248. JSTOR. PDF file. "LGBT Section 377." Lawyers Collective. 23 Nov 2010: n. pag. Web. 12 Mar. 2014. <http:// www.lawyerscollective.org/vulnerable-communities/lgbt/section-377.html>. "What Does Carnal Copulation Mean?." Ask.com. Ask, 2014. Web. 12 Mar. 2014. <http://www.ask.com/ question/what-does-carnal-copulation-mean>. "Reproductive Sex." The Free Dictionary by Farlex. The Free Dictionary, n.d. Web. 12 Mar 2014. < http://medical-dictionary.thefreedictionary.com/Natural+Sex>. . Klages, Mary. Introduction to Literary Theory. Bangalore: Christ University, 2012. 131-135. Print. Wolters, Eugene. "What the Fuck is Queer Theory?." Critical-Theory.com. (2013): n. page. Web. 12 Mar. 2014. <http://www.critical-theory.com/what-the-fuck-is-queer-theory/>. Rajakdhyaksha, Madhavi. "Supreme Court verdict on IPC section 377 impedes fight against HIV/AIDS." Times of India [Mumbai] 12 12 2013, National n. pag. Web. 12 Mar. 2014. <http:// timesofindia.indiatimes.com/india/Supreme-Court-verdict-on-IPC-section-377-impedes-fight-against- HIV/AIDS/articleshow/27236005.cms>. Klages, Mary. Introduction to Literary Theory. Bangalore: Christ University, 2012. 53-106. Print. Rao 18
  • 19. Chakraborty, Kaustav, and Rajarshi Guha Thakurata. "Indian concepts on sexuality." Indian Journal of Psychiatry. 55.2 (2013): 250-255. Web. 12 Mar. 2014. <http://www.ncbi.nlm.nih.gov/pmc/articles/ PMC3705691/>. "Religious leaders welcome Supreme Court verdict on Article 377." Muslim Mirror [New Delhi] 19 12 2013, Indian Muslim n. pag. Web. 12 Mar. 2014. <http://muslimmirror.com/eng/jain-religious-leaders- welcome-supreme-court-verdict-on-article-377-and-warns-govt-against-legalizing-homosexuality/>. Varma, Pavan K., and Sandhya Mulchandani. "Book View : Love and Lust: An Anthology of Erotic Liter- ature from Ancient and Medieval India ." HarperCollins Publishers India. HarperCollins Publishers India, n.d. Web. 17 Feb 2014. <http://harpercollins.co.in/BookDetail.asp?Book_Code=1392> Marsh, Jan. "Sex & Sexuality in the 19th Century." Victoria and Albert Museum. N.pag. Web. 17 Feb 2014. <http://www.vam.ac.uk/content/articles/s/sex-and-sexuality-19th-century/>. Pande, Harshit. "A Colonial Hangover : Section 377." Indian Economist. 11 Jan 2014: n. pag. Web. 17 Feb. 2014. <http://theindianeconomist.com/a-colonial-hangover-section-377/>. Vanita, Ruth. "Homosexuality and Hinduism." GALVA 108: The Gay and Lesbian Vaishnava Association Inc.. GALVA, n.d. Web. 17 Feb 2014. <http://www.galva108.org/hinduism.html>. Dhammika, Ven Shravasthi. "Buddhism and Homosexuality."Buddhist Channel. 21 Aug 2008: n. pag. Web. 17 Feb. 2014. < http://www.buddhistchannel.tv/index.php? id=70,6993,0,0,1,0#.UwERX_mSxdw> Huda. "Homosexuality in Islam." About.com: Islam. N.pag. Web. 17 Feb 2014. <http://islam.about.com/ od/islamsays/a/homosexuality.htm>.
  • 20. Newson, Lesley. "Why There Were No Homosexuals in Victorian England (or Iran for that matter)." This View of Life. 11 Feb 2012: n. page. Print. <http://www.thisviewoflife.com/index.php/magazine/articles/ why-there-were-no-homosexuals-in-victorian-england-or-iran-for-that-matter>.