You cannot legislate how desire works, says the author.

In July 2009, the Delhi High Court ruled that Section 377 could no longer be used to criminalise consensual sex between adult men and women. The Section technically covers heterosexual non-reproductive sex too, but in practice it has managed to demonise anal sex and influence the public misperception of it as being an exclusively gay male act. The High Court’s reading down of the law was thus an extremely far-sighted move.

However, despite the welcome judgment, the Delhi High Court fell into two traps. First, both petitioner and defendant assumed that sexual acts automatically conduce to an identity — “sexual orientation (is) a deeply held, core part of the identities of individuals” (7-8). But so many sexual acts — oral sex, anal sex, masturbation — mark potentially all of us, homo and hetero alike, as being “against the order of nature”. So how do we make the case for sexual identity on the basis of acts?

The second trap concerns the status of Indian morality and the state of Indian society. One side argued that homosexuality is a ‘foreign’ concept while the other side suggested that homosexuality is an ‘Indian’ concept. Both positions adhere to a static understanding of identity rather than questioning the need for such specificity. Whether one says homosexuality ‘is’ or ‘is not’ Indian, we are abiding by a script that assumes sexuality can be culturally and geographically specified.

Up to this point, the rhetoric employed by both sides is identical. But then something interesting happens. In support of its decision, the Delhi High Court judgment adduces the following: “(I)n 1860 when we got the Indian Penal Code, which was drafted by Lord Macaulay, they inserted s.377 in the Indian Penal Code, which brought in the concept of ‘sexual offences against the order of nature’. Now in India we didn’t have this concept of something being ‘against the order of nature’…. homosexuality as such is not defined in the Indian Penal Code, and it will be a matter of great argument whether it is ‘against the order of nature’” (70-1).

Despite the familiar narrative of homosexuality being or not being ‘Indian’, the judgment states, quite startlingly, that homosexuality as such is nowhere defined in the Indian Penal Code. Nor, it adds, is a category of sexuality as being ‘against the order of nature’ available in India before the enactment of the IPC. The import of this assertion is that the law created sexual identity where it did not exist before, and even then, refused to name it. What the High Court judges thus had for consideration before them was a mode of conceptualising identity that is at the core of the matter being debated.

This discussion about identity is one of the many things missing from the recent Supreme Court verdict overturning the High Court judgment. The Supreme Court ruled that certain (unspecified and unspecifiable) acts of carnal intercourse are indeed ‘against the order of nature’. Thus the judgment suggested that there are acts of carnal intercourse that are not against the order of nature, even though it did not list what these acts might be. ‘The order of nature’ here means nothing — it is too broad and under-examined a term since everyone who has sex has non-procreative sex ‘against the order of nature’ for large parts of their sexual lives; if they did not, our population problem would be a million times worse than it is today. In fact, sexual identity is the furthest thing from ‘nature’ (what is nature in the first place? and how and when did it adjudicate on sexual morality?); we all have desires that tug in different directions and we all have different faces and personas that assume ‘our’ identity at different moments. Sexual identity is a ruse by which the law attempts to put us into boxes that cannot contain our desires. If only the Supreme Court judges had read the story of the woman who marries another woman while being married to a man, they would have understood that a single sexual identity is impossible. If only they had understood that they cannot understand, let alone legislate, how desire works, their verdict would have been very different.

This is what the Delhi High Court pointed out. Not that Indians are or are not gay, but that the opposition is a false one. To be a lesbian is to presume a category, it is to assume an identity. We have always been lesbians because our desires run against the order of nature; we have never been lesbians because we cannot be categorised by desire. How can the Supreme Court legislate for that?

(The New Delhi-based LILA Foundation for Translocal Initiatives organised the PRISM Lecture Series 2013 on ‘Development and Contemporary India’ over the last few months in which 15 seminal thinkers participated. This is the second of a cross-selection of talks we will feature here. For more information, please visit www.lilafoundation.in)

Madhavi Menon is Professor of English at Ashoka University, New Delhi, and the author of Wanton Words: Rhetoric and Sexuality in the English Renaissance.