We Indians like to pretend like we kicked the British out 67 years ago, but we still desperately cling on to antiquated laws that perpetuate a Victorian morality.
Section 377 came into effect in 1861 — nearly 157 years ago — under the British Raj and states: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine. Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.”
Today, in 36 of the 53 sovereign Commonwealth states, homosexual activity remains a criminal offense. After many representatives brought up the issue of anti-LGBTQ+ laws, in April 2018, speaking at the Commonwealth Heads of Government meeting in London, Prime Minister of the United Kingdom, Theresa May, acknowledged the issue.
She said, “Across the world, discriminatory laws made many years ago continue to affect the lives of many people, criminalizing same-sex relations and failing to protect women and girls.” She admits that “these laws were often put in place by [her] own country” but “The UK stands ready to support any Commonwealth member wanting to reform outdated legislation that makes such discrimination possible because the world has changed.”
“[Anti-LGBTQ+ laws] were wrong then and they are wrong now … As the United Kingdom’s Prime Minister, I deeply regret the fact that such laws were introduced, and the legacy of discrimination, violence and even death that persists today,” she added.
Since the country that made the laws has changed its opinions and the law in its own country, why now should we, India, still be following a Victorian-era law in the 21st century?
Pre-colonial India was relatively less conservative about sex and sexuality than most western societies at the same time period. Sex was not seen as taboo in ancient Indian culture.
In fact, many religious texts, paintings, and sculptures at temples show the theme of sex and sexuality. Ira Trivedi argued in Foreign Affairs, a publication by the Council on Foreign Relations, that “the idea that homosexuality is somehow un-Indian might surprise anyone who has ever visited one of the many Hindu temples built all over the country as far back as the fourth century.”
Professor of history at Hunter College in New York, Manu Bhagavan said, “Sexual expression prior to the 19th century was much more free and open. There weren’t any labels like today … This is manifested in temple carvings and other forms of religious carving and would be broadly true of trends throughout society, so it wasn’t something that was peculiar or limited.” To make it seem as though Hinduism, the most prominent religion in India, tolerates homosexuality, some Hindus highlight one passage in the Vedas: “Vikruti Evam Prakriti,” which roughly translates to “What seems unnatural, is natural.”
After much commotion and noise by and from the citizens, the government came to a conclusion and in 2009, the Chief Justice of New Delhi, A.P. Shah, along with Justice S. Muralidhar had struck down Section 377 on the grounds that it violates three articles of the Constitution of India: namely the “Right to Protection of Life and Personal Liberty” (Article 21), the “Right to Equality before Law” (Article 14) and “Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth” (Article 15).
Seemingly a victory for the LGBTQ+ community of India, the judgment was soon set aside by the Supreme Court which believed that the law needed to be decided by the parliament and was not in the court’s jurisdiction.
However, years later, another law somehow managed to reignite the hope in the hearts of those who are pro-LGBTQ+ rights.
In August 2017, the Right to Privacy was implemented in India; this right included sexual orientation. The Supreme Court even stated that sexual orientation is “an essential attribute of privacy” which made it confusing that the Indian law believes that one’s sexual orientation is part of their privacy and yet two consenting adults could not legally engage in any intimate activity in the privacy of their own homes.
Justice A.P. Shah, who initially temporarily read down Section 377 in 2009, stated in an interview with The Indian Express that he feels that “there is a strong possibility that the Constitution bench examining the curative petition is bound to go by what the Supreme Court said in course of its judgment on [Right to Privacy]” and that due to the Right to Privacy, “There is very little scope now for those wanting to support Section 377.” Currently, the verdict on Section 377 lies reserved with the Supreme Court. Essentially the verdict could come out tomorrow or in 10 years.
It is about time for India to really get over laws that were implemented by another country.
If we pride ourselves on our culture and traditions– why do we still make use of laws set up by another people? It does not make sense to use Hinduism as an argument against LGBTQ+ laws in India–the idea of homosexuality is not western–the idea of homophobia is.
We simply can not use religion as an excuse to defend Section 377 in India–a secular country. Even if the LGBTQ+ community is a fraction of the Indian population, shouldn’t we all be treated equally under the eyes of the law?
Countless arguments have been made against Section 377, even an official statement from the Indian Psychiatric Society (IPS) that “homosexuality is not a psychiatric disorder,” it even recognizes “same-sex sexuality as a normal variant of human sexuality much like heterosexuality and bisexuality.” And states, “There is no scientific evidence that sexual orientation can be altered by any treatment and that any such attempts may, in fact, lead to low self-esteem and stigmatization of the person.”
As the world progresses and LGBTQ+ communities are getting more representation and rights, India should not lag behind anymore. So why are we still fighting this battle?
Edited by Shyla Robinson