2018 started on a hopeful note for the LGBT community of India when on Monday the Supreme Court announced that it would reconsider its earlier verdict regarding section 377 of the Indian Penal Code, which criminalises homosexuality. Several Queer activists and NGO’s have been fighting for a very long time to repeal this discriminatory law and if the Supreme Court finally decides to abolish section 377 then it would be a momentous occasion for the LGBT movement in India.
What is Section 377?
It deals with ‘unnatural offences’, and says 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 a term which may extend to ten years, and shall also be liable to fine.’This basically means that any act of sexual intercourse that is not penile-vaginal is considered as illegal, therefore, declaring homosexuality as a criminal act, punishable by law.
Here’s why Section 377 should be repealed:
• According to the figures submitted by the government to the Supreme Court of India in 2012, there are about 2.5 million gay people reported in India. These figures are only based on those individuals who have self-declared to the Ministry of Health, it does not take into account the people who have concealed their identity due to fear of discrimination. Section 377 declares all homosexual intercourse as a criminal offense thereby declaring a large section of the population as criminals.
• Heterosexual couples who engage in fellatio and/or anal sex are also declared as criminals under section 377 of the IPC.
• Article 14 of the Indian Constitution states ‘Equality before law’. Section 377 is in direct violation of this because it seeks to discriminate against an individual on the basis of their sexual orientation.
• Section 377 also violates Article 15 of the Indian Constitution which prohibits discrimination on grounds of religion, race, caste, sex or place of birth.
• Article 21 of the Indian constitution provides ‘Protection of life and personal liberty.’ Under section 377, the government seeks to invade the private space of an individual by trying to dictate whom a person should love or engage in sexual intercourse with. Therefore, it is in direct breach of the privacy clause of Article 21.
Section 377 dates back 157 years to a time when India was still under the colonial rule of Britain. It was introduced by the British in 1860 in order to establish a norm of aggressive masculinity as associated with the British military. What is ironic is that the British got rid of their law that criminalises homosexuality by 1967 (in England and Wales, extending to all areas in the Equality Act of 2010), yet India cannot let goof the homophobic legacy left behind by the British.
2017 saw the legalisation of gay marriage in Finland, Germany and Australia among many other countries that have amended their laws to include as well as protect a minority community that has been oppressed and discriminated against since a very long time. Therefore India too needs to follow the footsteps of these countries and repeal section 377 and be more tolerant and accepting of the Queer community.