The Legality of Being Gay in India
by kalyani10
In a fractured society as India, sexuality is an exceedingly complex subject. While globalization and consumerism has brought sexually explicit ideas and images into mainstream media, sexuality and sexual freedom in particularl are still hardly talked about. A deeply patriarchal social code has ensured that all forms of sexual freedom, including homosexuality, be banished to the fringes. The law taking its cue from repressive colonial institutions as well as continuing social and political pressures in independent India remains handicapped in offering gays in India the extent of rights and freedoms enjoyed in western countries.
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Section 377 of the Indian Penal Code
The legal precariousness of being gay in India is based upon Chapter XVI, Section 377 of the Indian Penal Code which states that “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”. Introduced during British rule of India and drafted in 1860 by Lord Macaulay, Section 377 is actually a part of the colonial project of regulating and controlling the Indian subject. No wonder then that this piece of legislation has down the years been used to criminalize and prevent homosexual associations - sodomy in particular even though it actually criminalizes any sexual activity "against the order of nature." Thus even consensual heterosexual acts such as fellatio and digital penetration may be a punishable offense under this law. Most importantly, nowhere in Chapter XVI, Section 377 of the Indian Penal Code, homosexuals, bi-sexuals or transgenders are mentioned specifically as the exact target of the legislation.
Despite Section 377 of IPC hanging like a sword over gays, lesbians and bisexuals in India, there has been no case of a consensual homosexual act being prosecuted / convicted under this act. And yet such is the social and institutional discrimination against gays that the Section 377 is used time and again to harass members of the sexual minority groups. Human Rights Watch argues that the law has been used to harass not only homosexuals but HIV/AIDS prevention efforts, as well as sex workers and other groups at risk of the disease. The People's Union for Civil Liberties has published two reports of the rights violations faced by sexual minorities in India. PUCL Report1 on Human Rights Violations Against Sexual Minorities demonstrates that Sec 377 becomes the basis for routine and continuous violence against sexual minorities at the level of the street and the police station by the police. The report in fact goes on to note that the police engage in practices of illegal detention, sexual abuse and harassment, extortion and outing of queer people to their families, which are all forms of violence practiced against sexual minorities.
Another way that Section 377 of IPC has acted against the sexual minorities in India is by acting as a psychological threat to India's sexual minorities. It has resulted in gays, lesbians, bisexuals and transsexuals denying the basic urges of their sexuality for fear of being criminalized by law and treated as social outcasts. The fumes of fear, depression, denial and misery it has subjected so many men and women to can hardly be estimated because of the shroud of secrecy which still surrounds same-sex relationships. Above all, the law has resulted in countless instances of misery and harassment, and spawned a thriving blackmail industry. In all these ways, law not only legitimizes violence against sexual minorities but goes a step beyond by constituting a form of social reality in which all sexual behaviors which are antithetical to the heterosexual norm are viewed by ordinary people as unnatural. Human rights experts point out that the real danger of Sec 377 lies in the fact that it permeates different social settings including the medical establishment, media, family, and the state. Thus an anti-gay stance becomes a part of ordinary conversations and ultimately a part of the very social fabric in workplaces, families, hospitals and the popular press.
The Legal Battle
Recognizing these threats, many liberal voices from Indian society rose against the Section 377 of IPC in the last decade. In 2006 it came under criticism from around Indian literary figures, most prominently Commonwealth Writers Prize winning author, Vikram Seth. The law subsequently came in for criticism from several ministers, most prominently Anbumani Ramadoss and Oscar Fernandes. In 2008, a judge of the Bombay High Court also called for the scrapping of the law. The first step to repeal Section 377 was initiated by AIDS Bhedbhav Virodhi Andolan in 1991. Their historic publication Less than Gay: A Citizen's Report, spelled out the problems with 377 and asked for its repeal. As the case prolonged over the years, it was revived in the next decade, led by the Naz Foundation (India) Trust, an activist group, which filed a public interest litigation in the Delhi High Court in 2001, seeking legalization of homosexual intercourse between consenting adults. In 2003, the Delhi High Court refused to consider a petition regarding the legality of the law, saying that the petitioners, had no locus standi in the matter. Naz Foundation then appealed to the Supreme Court against the decision of the High Court to dismiss the petition on technical grounds. The Supreme Court decided that Naz Foundation had the standing to file a PIL in this case and sent the case back to the Delhi High Court to reconsider it on merit. Eventually, in a historic judgment delivered on 2 Jul 2009, Delhi High Court overturned the 150 year old section, legalizing consensual homosexual activities between adults.
Significance of 2009 decision
What was truly path breaking about the Delhi High Court’ verdict was that it linked its ruling to each citizen's fundamental right to freedom and protection from discrimination. In a 105-page judgment, a bench of Chief Justice Ajit Prakash Shah and Justice S Muralidhar said that if not amended, section 377 of the IPC would violate Article 14 of the Indian constitution, which states that every citizen has equal opportunity of life and is equal before law. By ruling that the essence of section 377 went against the fundamental right of human citizens, the court ensured that its verdict would be taken out of the perpetually contentious religious and cultural context of India and henceforth the rights to freedom from discrimination and equal opportunity to life of all citizens, including homosexuals, would be safeguarded by the Constitution of India.
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