Section 377: A Colonial Abomination

What is Section 377 of the IPC?

Section 377 of the Indian Penal Code is an outdated and archaic rule introduced in 1860 by the British in India. It explicitly prevents sexual activities “against the order of nature” and this has been found to include homosexual activities. The punishment for violation of this section can extend up to imprisonment for life. Thus citizens of India, a country which prides itself on being a “liberal democracy”, do not have their basic right to determine their individual sexual orientation.

A Time-Line

In July 2009, the Delhi High Court decriminalized this section with respect to consensual sexual activity between adults. The High Court delivered a 105-page verdict, which was regarded as a landmark judgment, which described how the section 377 of the IPC in its present form violates the Right to Privacy and the Right to Equality (Article 14) of the Indian Constitution. This led to a flurry of appeals mainly from hard-line religious organizations.

On 11th December 2013, the Supreme Court of India overturned the verdict of the Delhi High Court. It ruled that “Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable”. The bench of justices, however, noticed that Parliament should debate and make laws on this matter as it was beyond the ambit of the judiciary.

On 2 February 2016, however, the Supreme Court agreed to reconsider its judgment. The Court also stated that it would refer petitions to abolish Section 377 to a five-member constitutional bench, which would conduct a comprehensive hearing of the issue.

History of Homosexuality Worldwide

Society has had different perceptions of homosexuality from times immemorial – from expecting all males to indulge in same-sex relationships (as in the case of Ancient Greece) to proscribing it under penalty of death (Saudi Arabia, present). On August 6, 390 CE the Christian Emperor of Rome, Theodosius I decreed a law condemning homosexual males to death by burning at the stake. After that, the West widely looked down upon homosexuality it was made punishable under the law.

In 1867, Karl Heinrich Ulrichs became the first self-proclaimed homosexual person in Modern History to speak out publicly in favor of homosexuality when he pleaded in Munich at the Congress of German Jurists for a resolution to repeal anti-homosexual laws.

In 1969, the Stonewall Riots took place between the New York City police officers and patrons of the Stonewall Inn, a gay hangout. This sparked the flame of gay rights in the people and many LGBT rights organizations were formed in its aftermath. The first Gay Pride March was held the next year on its anniversary.

Current Scenario Globally

In today’s advanced world, most nations do not prohibit consensual sex between unrelated people above the legal age of consent. Some countries even go further and recognize rights and privileges such as marriage. Some nations, such as India, mandate that all individuals resort only to heterosexual activity, effectively banning homosexual relations. In some fundamentalist, orthodox Muslim countries such as Iran and parts of Nigeria, offenders can face the death penalty.

Homosexual acts were decriminalized in many parts of the Western world such as Poland, Sweden, Denmark and the United Kingdom in the mid 20th century. However, the community began to receive limited civil rights in most developed countries only around the 1970s. Before 1973, homosexuality was recognized as a clinical mental disorder in the United States of America. But this changed when the American Psychiatric Association removed homosexuality from the Diagnostic and Statistical Manual of Mental Disorders.

Some countries have even gone so far as to prohibit discrimination against people based on their sexual orientation. In the USA and the European Union, discrimination for employment, housing etc. on the basis of sexual orientation is illegal. Today, gay culture is demonstrated by numerous gay pride movements throughout the world. This includes annual parades and rainbow-colored flags.

People’s Voice in India

There are no official statistics on the number of people belonging to the homosexual community in India. However, in 2012, the Government of India submitted figures to the Supreme Court which recorded about 2.5 million openly homosexual people in India. However, these only include people who have openly declared themselves to the Ministry of Health. There are much more who are afraid of being prosecuted and have hence remained in the closet.

In 2005, Prince Manvendra Singh Gohil from Gujarat publicly came out as gay. He was quickly anointed as the first openly gay royal in the world. He was immediately disowned by the royal family as a knee-jerk reaction but they soon reconciled.

Then in 2006, Nobel Laureate Amartya Sen, acclaimed writer Vikram Seth, and many other famous Indians publicly demanded the repeal of Section 377.

In 2009, gay pride parades were held in five major cities of India – Delhi, Bangalore, Kolkata, Indore and Pondicherry. In India, religion plays a major role in shaping people’s opinions. Rig-Veda, one of the sacred Hindu texts, says “Vikriti Evam Prakriti”. Religious scholars believe that recognizes homosexual dimensions of human life. Historical literature shows that the Indian subcontinent has been receptive and open to homosexuality at least till about the 18th century.

Shashi Tharoor, a member of the opposition party, introduced a Bill for the decriminalization of Section 377. And on December 18, 2015, it was rejected by the House. However, a Bharatiya Janata Party spokesperson from Mumbai, Shaina NC, has come on record saying that the BJP was for decriminalizing homosexuality as it was the “progressive way forward”. We can only hope that the Parliament passes a Bill to this effect soon.

Religious Opposition

Orthodox religious groups have proven to be the biggest obstacle in the way of decriminalization of homosexuality in India. The main petitioner in the plea which led to the December 2013 judgment of the Supreme Court was an astrologer. The petitioners were Suresh Kumar Koushal, and other religious groups. Groups such as the All India Muslim Personal Law Board, Krantikari Manuwadi Morcha, Trust God Missionaries, Utkal Christian Council and the Apolistic Churches Alliance.

Baba Ramdev, India’s famous yoga guru, advised his interviewers not to turn homosexual. This before stating that homosexuality was a bad addiction which could only be cured through yoga.

The Vishwa Hindu Parishad has said that homosexuality opposes Indian culture and is against nature and science. Om Prakash Singhal thanked the Supreme Court for protecting their culture. This, however, is in stark contrast to many Hindu teachings as Hinduism does not recognize homosexuality as a cardinal sin.

Homophobia is observable in the words of Maulana Madni of the Jamiat Ulema-e-Hind, an Islamic organization. He said, “scriptures and is unnatural. People cannot consider themselves to be exclusive of a society… In a society, a family is made up of a man and a woman. Not a woman and a woman, or a man and a man.”

The Church

Reverend Paul Swarup of the Cathedral Church of the Redemption in Delhi clearly set forth his opinion on the unnaturalness of homosexuality by saying, “Spiritually, human sexual relations are identified as those shared by a man and a woman. The Supreme Court’s view is an endorsement of our scriptures.”Rabbi Ezekiel Isaac Malekar, the honorary secretary of the Judah Hyam Synagogue, upheld the judgment and was also quoted as saying “In Judaism, our scriptures do not permit homosexuality.”

Thus in order to progress and relieve ourselves of this relic of our colonial past, we must first get over our religious sentiments, which are opposed to personal liberty. The United Kingdom, which forced this law on us, has moved on by decriminalizing homosexuality. It is about time we do so as well.

-Siddharth L. Pai

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