LGBT community members participate in ‘National Coming Out Day’ to mark the anniversary of High Court’s verdict amending Section 377, in Chennai. (Source: PTI)

#HimToo: Read Down Section 377, Don’t Delete It Entirely

BloombergQuintOpinion

Noted activist Pinki Virani writes to India’s Supreme Court – says IPC Section 377 should not be fully struck down, raises heterosexual male rights and requests definition of ‘explicit consent’ for anal sex among adults. This is her letter.

To

Honourable Chief Justice Dipak Misra, Ladyship Indu Malhotra, Lordships Rohinton Nariman, Ajay Khanwilkar, and Dhananjaya Chandrachud.

“Women are being raped,” the Supreme Court of India said on Aug. 7, “left, right and centre.” This, despite stringent anti-rape laws.

The law was strengthened, by then home minister Sushil Kumar Shinde, to also include repeat-offenders and life-imprisonment or death sentence for rapists who put victims in persistent vegetative state. The codicil came after the SC’s landmark judgement-law of passive euthanasia in 2011, which it upheld in March this year while adding living wills. The passive euthanasia law – and its consequent corollaries like parts of the strengthened anti-rape law, the decriminalisation of suicide, an early-draft of a Parliamentary-passable passive euthanasia law and connected advanced directive clause – happened because of Aruna Shanbaug, the nurse who, while being sodomised, was strangulated and put into PVS.

The court’s documenting of PVS gave it, for the first time in India, medico-legal status; pre-PVS there was nothing between ‘murder’ and ‘attempt to murder’.

Should an adult-male become a victim of PVS while being sodomised, his perpetrator – like Aruna’s – might yet walk free: the PVS clause is in the anti-rape law, which is for women.

Children Are Also Being Sexually Assaulted “Left, Right, Centre”

The sexual assault of two boys by a maulana in a Katraj orphanage; the gang-rape of the Kathua girl in a temple; the molestation of girls in a Guwahati ‘children’s village’ run by an international NGO; the rape of a deaf-mute tribal in Madhya Pradesh and onslaughts on several others by the man who ran two state-government funded hostels. The normalising of the term ‘mass-rapes’ – after ‘gang- rape’; it’s been a mere six years since Jyoti Singh a.k.a. Nirbhaya – in Bihar and Uttar Pradesh.

Here, children – boys and girls – in government-run ‘shelters’ were being sex-trafficked while a woman-warden played pimp. Unsurprisingly, the husband of a politician also visited the minors at night; he knew the local power broker who had set up these shelters as much for availing additional government funds with ghost entries.

It’s tempting to avert a collective gaze after calling it a tragedy associated only with abandoned, or orphaned, or runaway children.

But child sexual abuse is a crime that cuts across class and gender – one out of four male-children, two-three out of four minor-girls – with 50 percent of it being perpetrated by adults in possession of the child’s trust or physical bodies.
#HimToo: Read Down Section 377, Don’t Delete It Entirely

Further sickening confirmation comes from this month’s (Aug. 3) dismantling of a child-porn sharing group: 217 members from Mumbai, Thane and other parts of Maharashtra, Uttar Pradesh, Delhi, Haryana, Madhya Pradesh, Tamil Nadu, Muscat, England, and America. The group began with adult-porn, and as is the general pattern, moved to younger flesh. The child-porn videos they shared also had ‘fresh content’, likely the boys and girls were from their known-families.

Some months back another not-all-male group had a father uploading his daughter’s videos which got more hard-core; the sharers lived in the same locality. This, despite the Information Technology Act and the tough, gender-neutral Protection of Children from Sexual Offences Act, the foundation of which was laid by then Prime Minister Atal Bihari Vajpayee and vigilantly shepherded through by then UPA Chairperson Sonia Gandhi.

POCSO is applicable for girls and boy-children till they are under-18 (the legal age of minors). It need not be used in isolation against paedophiles; POCSO does not prevent social workers, lawyers and police from adding IPC provisions, if applicable, when filing the charge-sheet so as to enable an across-the-board judgement against the accused. Indian Penal Code Section 377 is read alongside POCSO provisions for both, girls and male-children.

The anti-rape law takes over for young-women from 18-plus. IPC Section 377 is the only law which would apply for young-men from 18-plus.

Who 377 Protects

Alas, Ladyship and Lordships, we appear to have reached that point where the best of laws are not ‘live’. The reasons are oft-lamented, their solutions are in sight. Yet, politicians of all stripes prefer to be busy slithering through election-to-election than care about the collapse of law and order and its directly brutalising effect on escalating sex-crimes. But even till such time as justice is not done, it needs to at least be seen to be done. Ergo, laws need to be in place to protect the most vulnerable.

And if, Your Honours, IPC Section 377 is struck down by you in its entirety, at risk will be the largest population of Indians – the heterosexual male, age 18 and upwards.

Then, would it be alarmist to wonder whether, with the glaring absence of an anti-male-rape law, Indian men could be sodomised “left, right and centre”?

IPC Section 377 is also the only law which deals with unnatural sex or sex against the order of nature.

Necrophilia – sex with a dead body – is unnatural; there have been cases.

Bestiality – sex with animals – is against the order of nature; recent cases prove that the existing animal cruelty law is clueless about reality (an adult male-to-puppy rape in Delhi, gang-sodomy of a pregnant goat).

A steel rod shoved into a body-orifice – be it of adult heterosexual women, men or lesbian-homosexual- transgender – is heinous, as are gang-sexual assaults. These also need 377.

As does the woman who can barely make it to the police station to file a case against her husband. He didn’t use the usual-aids of those anally-inclined, condoms and lubricants. She will need stitches, pain-wracked treatment to regain control over her ruptured sphincter.

Your Honours have reserved judgement – due next month – on petitions from LGBT persons asking for 377 to be scrapped. But, and one is open to correction, there is also Anjali Gopalan’s admirable, and persistent, effort to decriminalise gay sex with her plea being for a ‘reading down’ of only that part of 377 which would make adult, consensual, same-sex a crime. If, indeed, the Supreme Court is inclined to agree, by ordering that only a specific section of 377 be read down, it would rightly retain the constitutional validity of 377 by not discriminating against the larger.

The Chief Justice of India’s courtroom. (Image: Supreme Court of India website)
The Chief Justice of India’s courtroom. (Image: Supreme Court of India website)

Defining ‘Explicit Consent’

Two sincere requests to the Justices of this bench:

  • If there is to be a judgement decriminalising same-sex sex, please do ensure that the wordings don’t leave a loophole for allowing male-to-male prostitution to flourish. Alongside spikes in related-crimes, at risk of being viciously sucked into sex-selling is the 12 to 21 age-band of young males. Money can make ‘consensual’ meaningless. (Witness some marriages, he doesn’t have to hit her to rape her, he just has to hold back the household expenses.)
  • So what should ‘consensual’ comprehensively mean, Your Honours? It would go the longest way, even for women’s rights, if the highest court in the land defines ‘explicit consent’. Not written, or implied, or implicit by-silence/inaction consent. But informed, spoken, ‘explicit’ consent where every “no means no”.

For example, the question of consent for a male Nirbhaya, a Nirbhay who hitches a ride and is violated, doesn’t arise.

But a male executive at a corporate party where a knock-out is slipped into his drink by a mid-level boss and when he wakes he is a video’d-victim to future sexual harassment at the workplace unless he keeps bending over?

Or homosexual ‘godmen’ and priests starting to abuse teens as part of ‘rituals’ and it continuing after they have grown because they are keeping quiet from the shame of it?

Or male student group-housing where the initiation culminates in providing oral sex to seniors after the ragging of stripping down to underwear? (Visuals regularised by a hit Hindi film; in another film, males pull down their pants in public and present their undie-clad backsides as tohfa , or ‘gift’ to the hero – now think of the same scenes as being done by women.)

Or the male casting couch in Bollywood itself, referred to with sniggers as the ‘g-gang’? Or even date-rape among homosexuals?

The need for ‘explicit consent’ acquires urgency from this case, so that homosexuals can understand boundaries (just as males are expected to around females).

On Aug. 23, the Bombay High Court reduced the jail term (from life imprisonment) of a mid-30s man who stabbed his friend who had attacked him for refusing to indulge in anal sex. The man, the court agreed, had legitimate “gay panic defence” (earlier used in American courts to lessen charges to culpable homicide not amounting to murder).

Your Honours, forgive me if I have trespassed. Just as I gave voice to the sexually abused boy-child, alongside the girl, in ‘Bitter Chocolate’, I feel compelled to speak for the adult, heterosexual male – he hasn’t been heard at all.

Pinki Virani is the author of ‘Politics Of The Womb—The Perils of IVF, Surrogacy & Modified Babies’.

The views expressed here are those of the author’s and do not necessarily represent the views of BloombergQuint or its editorial team.