1 December 2016
Section 377, or India’s anti-sodomy law, as Shakespearean comedy.
(This is an essay from our December 2015 print quarterly ‘The Marriage Issue: Loves, laws, lusts’. See more from the issue here.)
“Carnal intercourse against the order of nature.”
This is the rubric which encompasses all sexual acts criminalised under Section 377 of the Indian Penal Code. Since the year 1860, this provision has been used within, and much more often, outside the courts to systematically harass, persecute and prosecute LGBT individuals in India. Read down in the Delhi High Court’s landmark 2009 Naz Foundation vs Govt. of NCT of Delhi case to exclude consensual adult sex in private, it came back in full force in December 2013, with the Indian Supreme Court’s reversal of the 2009 judgment in Suresh Kumar Koushal vs Naz Foundation.
The 2013 judgment has been criticised for its failings, both as a legal document and as a dereliction of a constitutional court’s duty to curb majoritarianism. In overturning the Delhi High Court judgment, the two-judge bench ensured the recriminalisation of the intimate lives of LGBT individuals in the country. Apart from noting the failure to appreciate established constitutional principles, writings around the judgment have scrutinised the bench’s inability to acknowledge the vast amount of evidence placed before it pertaining to indiscriminate abuse of the law targeting LGBT individuals. What eludes understanding is how the judges were simply unable to display empathy in the face of overwhelming testimonies to the contrary. How was it possible for the Court to hold that a vulnerable minority was undeserving of the most fundamental legal rights?
Perhaps Shakespeare has some answers.
The Bard’s plays are permeated with questions relating to law and justice. How does Othello determine Desdemona’s guilt through the presentation of evidence? How does Portia’s strict interpretation of a contract save an innocent man from a ghastly fate while simultaneously stripping another of his humanity? How does King Lear’s attempt to apportion love lead to his ultimate demise? What does it mean for the law to regulate a force as primal as sexuality?
This last question lies at the heart of Shakespeare’s Measure for Measure. The story of an all-too benevolent Duke’s misplaced attempts at bringing the rule of law back to his citizenry, the play raises several crucial issues about law that are as relevant today as they were in 17th-century England. In particular, the play illuminates a concern central to the Suresh Kumar Koushal court: what is the significance of scrutinising the idea of “carnal intercourse against the order of nature”?
In the First Folio, which is the original publication bringing together Shakespeare’s works, Measure for Measure is to be found in the comedy section. The word comedy is derived from the Greek komos, meaning revelry or merrymaking. Shakespeare’s comedies tend to follow a standard structure that culminates in precisely such revelry: starting with an obstacle to love between young lovers, followed by an escape from this societal hindrance (usually into the world of nature) resulting in comic confusion, and finally, the sorting out of the mess, and the restoration of order and harmony. One of his most joyous comedies, As You Like It, ends with a surfeit of revelry, featuring not one but four weddings.
Measure for Measure doesn’t quite follow this structure, at least not in spirit, falling instead into the ‘problem play’ category. At the intersection of comedy and tragedy, the problem plays don’t have the clean resolutions and more easily definable moral compasses of the comedies; neither do they grapple with justice in the manner of the tragedies. Instead, as one finds in this play, there is a moral murkiness at the core, a bitterness, which amongst other things, blurs the lines between right and wrong. At its heart are a set of difficult questions we continue to struggle with till date: How do you judge? With what measure do you judge?
Before we get into these questions, the plot. As it begins, Duke Vincentio of Vienna is preparing to step down from his position. Having left the laws of Vienna unenforced for too long, he finds that sexual licentiousness and moral turpitude breed unchecked among its denizens. In his attempts to reestablish control, he appoints in his place a deputy, Angelo, who is the Duke’s complete opposite. Angelo believes in the strictest enforcement possible without mercy. His coming into power leads to the reinforcement of a law on fornication – the law stating that anybody who has sex outside marriage will be put to death. The first person to fall foul of the law is Claudio, in a relationship with his lady love, married to her in every way but the formalised legal one, and who has now gotten her pregnant.
Upon being informed of Claudio’s impending execution, his sister Isabella, herself a conservative nun, rushes to Angelo to plead for her brother’s life. She invokes a whole range of arguments, but her core point is that one must be merciful, that it is one thing to have a tyrant’s strength but another to use it like a tyrant. Angelo appears to be at least somewhat moved and tells her to come a day later. In the interim period, he realises that he has fallen in love with her. Unfortunately, the only way he seems to be able to manifest his desire is by commanding her to give her body to him for one night. She is horrified by this proposal, but is lucky to find the Duke himself, now disguised as a friar. The Duke helps her out through a ‘bed-trick’: substituting a former lover of Angelo’s for Isabella under the cover of night. The plan works out fine until Angelo decides he needs to execute Claudio anyway to ensure he doesn’t come back to avenge his sister. The Duke is finally prompted to return to the city, where he exposes Angelo’s misdeeds, pardon’s Claudio and asks for Isabella’s hand in marriage.
Parallel to these events, we’re also witness to the ways in which the new regime of enforcement is impacting sexual trade in the city. Angelo’s deputy, Escalus, is our lens into this world, as he interacts with other inhabitants of the city in a significantly more empathetic manner than Angelo. An interaction between Escalus and one of the aforementioned licentious citizens, Pompey, will prove to be particularly significant.
Measure for Measure was written at a time when intense debate raged around the question of whether sexual misdemeanours should be brought within the purview of the legal system or left to the discretion of ecclesiastical authorities. This debate culminated in legislation in the 1600s. As the historian Keith Thomas comments, “If any single measure epitomises the triumph of Puritanism in England, it must surely be… [the law] for ‘suppressing the detestable sins of incest, adultery and fornication’. This was an attempt, unique in English history, to put the full machinery of the state behind the enforcement of sexual morality.”
Claudio’s plight in the play is not merely a requirement of the plot, but a situation which could become a social reality for Shakespeare’s audience. Section 377 provides its own potential for transcending its intended audience: the Suresh Kumar Koushal interpretation of the provision refuses to outline which acts of carnal intercourse squarely fall within and without the order of nature. As poet and writer Akhil Katyal observes wryly in a poem, this significantly opens up the contours of the statute:
Girl, when you
blow your boy,
or boy, when
you go down
on her, or when
both of you use
a toy, and all the
world’s a blur,
I know it feels
like heaven, you
too violate 377.
We know that Section 377 is a legal remnant of the British colonial legacy that spread across different colonies in that period. These criminal codes contained anti-sodomy provisions, worded in different permutations and combinations, yet all tied to a predominant fear: moral infection from the native environment. There was a fair amount of writing warning about the widespread homosexuality of the period. Explorer Richard Burton, for instance, postulated a “Sotadic Zone” stretching around the planet’s midriff from 43 degrees north to 30 degrees north of the equator, in which “the Vice is popular and endemic… whilst the races to the North and South of the limits here defined practise it only sporadically amid the opprobrium of their fellows.”
A very crucial part of this project was to invoke the idea of nature. Clause 361 and 362 of the Draft Penal Code criminalised persons who intended to gratify unnatural lust by way of touching any persons for such purposes. These clauses were drastically redrafted into what became Section 377, but what remained was this idea of ‘nature’. Nature was the sovereign authority, the point which would determine what kind of sexual behaviour was privileged and what was not.
Looking at cases that attempt to interpret Section 377 after the institution of the penal code, we find that a lot of them are focussed on this particular question: How do we define what is within the order of nature and what isn’t? And what inevitably comes through is that nature is just a code word, an arbitrary line, to divide acceptable and unacceptable sexual behaviour.
In 1884, Government vs Bapoji Bhatt, one of the first Indian cases to reach the law courts in appeal, found that “against the order of nature” must mean anal sex, since “the act must be in that part where sodomy is usually committed”. There wasn’t any attempt to understand nature. Instead, it was simply used as a substitute term for penile-vaginal sex. What seemed implicit was clearly outlined in 1925 with Khanu vs Emperor, where the Court understood the order of nature as the possibility of conception of human beings. The Court also described in forensic detail precisely what would constitute carnal intercourse, and in the process, clinically severed the individual from the act:
[A] temporary visitation to one organism by a member of the other organism, for certain clearly defined and limited objects. The primary object of the visiting organism is to obtain euphoria by means of a detente of the nerves consequent on the sexual crisis. But there is no intercourse unless the visiting member is enveloped at least partially by the visited organism, for intercourse connotes reciprocity.
The Lohana Vasantlal Devchand vs the State case in 1967 is the most explicit example of nature being used as an alibi for bias. The Gujarat High Court first informs us that oral sex is unnatural since the orifice of the mouth is not meant for sexual or carnal intercourse. In the same breath however, the court tells us that it might be permissible for heterosexual couples, if it was part of foreplay leading up to natural (also known as peno-vaginal) sex. Nature thus becomes a proxy word for public morality, or more specifically, the judge’s particular morality.
In Measure for Measure, Shakespeare confronts us with a law that prohibits fornication. It creates a category of sexual acts that are permissible, and those that are not, and in doing so, it serves as an equivalent of a law criminalising carnal intercourse against the order of nature. The fornication law is part of a series of ‘reforms’ that includes shutting down the city’s brothels. Angelo’s deputy Escalus, in his role as a magistrate, debates this with Pompey who is being prosecuted before him:
Escalus: How would you live, Pompey? By being a bawd? What do you think of the trade, Pompey? Is it a lawful trade?
Pompey: If the law would allow it, sir.
Escalus: But the law will not allow it, Pompey; nor it shall not be allowed in Vienna.
Pompey: Does your worship mean to geld and splay all the youth of the city?
It’s lawful if the law will allow it, as simple as that. Pompey points out the arbitrary nature of the law when it tries to control morality, and in this particular instance, sexuality. Certain actions may be invariably deemed so wrong, such as murder, that they are always illegal; but morality is not a sure guide to legality. The only reason why prostitution or fornication is a problem in the world of the play is because the law says it’s so. It could be a viable trade if the law would allow it.
Pompey’s response also indicates how arbitrary the law can be. The idea of right and wrong doesn’t emanate singularly from people’s behaviour, it comes just as much from a sword that is dropped from high above. And indeed, we know this is true, the idea of deeming certain sexual behaviour as unnatural or immoral can happen by as simple a process as the change of a ruler. One person, the Duke, doesn’t think there should be enforcement of this law, that it should just be phased out; the other, Angelo, desires it, and just like that, a new category of disrepute is created.
This kind of reasoning points us towards another useful concept, that of natural law. Natural law refers to the use of reason to analyse human nature, and to deduce rules of moral behaviour from it. Pompey argues that the law, as enforced by Angelo in particular, is not derived from the rules of nature, because there is something inevitable about desire. You cannot simply snap your fingers and put a stop to it. As Pompey puts it, in order to restrain desire, the only alternative remaining would be to geld and splay the youth of the city.
What all this indicates is that the anti-fornication law is unnatural on two levels. First, it goes against reason, which is at the heart of natural law; and second, it tries to curb a very natural impulse. Attempts to regulate desire can only go so far, as the weak enforcement of statutes like Section 377 across multiple jurisdictions goes to show. Indeed, as Christopher Leslie, professor of law, notes, one of the arguments to stagger the repeal of sodomy laws in the US was the fact that they were largely unenforced. The argument arises from a three part syllogism: first, sodomy laws are unenforced; second, unenforced laws are harmless; and thus, third, sodomy laws are harmless. The problem with this assertion, however, is how it misunderstands the notion of ‘harm’.
In India, for instance, there are only a handful of prosecutions for consensual sex under Section 377, if the appellate Court record is anything to go by. And yet, we know that it is not prosecution, but persecution, that is the chief peril of the law: the manner in which it is used as a tool of abuse to blackmail and harass sexual minorities across the country. Either way, whether persecuted or prosecuted, LGBT individuals continue to thrive and express desire. Desire, that in the world of Measure for Measure, is very clearly a natural impulse. One of the most beautiful speeches of the play is delivered by Lucio to Isabella when he informs her of Claudio’s situation:
Your brother and his lover have embraced;
As those that feed grow full, as blossoming time
That from the seedness the bare fallow brings
To teeming foison, even so her plenteous womb
Expresseth his full tilth and husbandry
This speech fuses together sex and nature in rapturous metaphor, contrasting quite starkly with Lucio’s description of Angelo:
[A] man whose blood
Is very snow-broth; one who never feels
The wanton stings and motions of the sense,
But doth rebate and blunt his natural edge
With profits of the mind, study and fast.
Here is a man who refuses to recognise his natural passions. Not content with that, he intends to direct the rest of erring humanity along the same narrow path. Consequently, the institution of law which was designed for the protection of human beings becomes in Angelo’s hands “the hideous law”. Angelo can only think of law in terms of a vehicle to induce terror:
We must not make a scarecrow of the law,
Setting it up to fear the birds of prey,
And let it keep one shape till custom make it
Their perch, and not their terror.
When the Delhi High Court delivered its judgment in favour of Naz Foundation in 2009, it made a very crucial distinction. It understood that the entire natural-unnatural debate was an illusory one. That it was nothing but a proxy for public morality. The judges quoted from Britain’s 1957 Wolfenden Committee Report:
In so far as the basis of this argument [for criminalising homosexuality] can be precisely formulated, it is often no more than the expression of revulsion against what is regarded as unnatural, sinful or disgusting. Many people feel this revulsion, for one or more of these reasons. But moral conviction or instinctive feeling, however strong, is not a valid basis for overriding the individual’s privacy and for bringing within the ambit of the criminal law private sexual behaviour of this kind.
The judges argued that public morality by itself cannot be the test for constitutionality. What is needed is a higher value, that of constitutional morality: “Popular morality… is based on shifting and subjecting notions of right and wrong. If there is any type of ‘morality’ that can pass the test of compelling state interest, it must be ‘constitutional’ morality and not public morality.”
The failure of the Suresh Kumar Koushal case is that it is unable to understand this point. What the Supreme Court has attempted to do is to try and draw a line circumscribing unnatural sexual acts. But there is no real line that can be justifiably drawn between carnal intercourse within the order of nature and carnal intercourse against the order of nature. Any attempt to do so is going to fail to provide adequate reasoning – the idea of supporting a nation with reason is the very core of natural law. So when the judges in Suresh Kumar Koushal vs Naz Foundation are unable to give us a reasoned order, they go against the tenets of natural law, of natural justice. As Shakespeare would tell us, by attempting to regulate human sexuality in this way, they are ultimately committing the most unnatural act of all.
Ultimately, why is this interrogation of the ‘unnatural’ so important?
The celebration of Bangalore Pride month in 2015 began with an event that brought together queer activists from the city to reflect on the emergence of queer activism in the past decade. In a conversation on intersectionality, one of the activists responded by going back to the text of Section 377. One level on which to understand “carnal intercourse against the order of nature” is of course by reference to sexual acts as conducted by sexual minorities. But there is clearly more to the idea of what is unnatural in the Indian context. Similar sentiments are invoked when we think of relationships across the caste divide, or when we think of relationships that cut across religious barriers.
These ‘unnatural’ unions inspire more than deep unease: inter-caste relationships must be answered with honour killings; inter-faith relationships can only be understood as religious insults. The now infamous term ‘Love Jihad’, the alleged Muslim conspiracy that plots to convert young non-Muslim girls to Islam through marriage by feigning love is also referred to as Romeo Jihad. This other Shakespearean invocation is quite telling: Romeo and Juliet, after all, occupies pride of place in the literary canon on love’s subversions. In the play’s most famous scene, as the lovers’ trade vows in the Capulet orchard, Juliet marvels at young Romeo’s tenacity in coming to her, given that:
The orchard walls are high and hard to climb,
And the place death, considering who thou art,
If any of my kinsmen find thee here.
But Romeo stands undaunted, buffeted on love’s light wings:
For stony limits cannot hold love out,
And what love can do that dares love attempt;
Therefore thy kinsmen are no let to me.
This love that dares to speak its name is the love that threatens the social order. The response to this love is to invoke a calamitous disruption in its stead: quite literally, nature, when it comes to same-sex intimacy; the social order, when it comes to other kinds of queer love. Ultimately, it may not take us far to make an appeal to nature. Rather, it is more likely to lend itself to the misuse of nature’s authority. The unnatural, at any rate, is not necessarily the undesirable. As B R Ambedkar noted on 4 November 1948 while moving the draft constitution in the Constituent Assembly: “Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top dressing on an Indian soil, which is essentially undemocratic.”
~ Danish Sheikh is a Bengaluru-based lawyer working on issues relating to gender and sexuality, anti-discrimination, law and literature. He serves as visiting faculty at a number of law schools across India.