India takes a step out of the closet

Aaradhana Jhunjhunwala
15 July 2009

In 1861, Thomas B. Macaulay, first Law Member of the Governor-General's Council in India introduced Article 377 to the Indian Penal Code, outlawing all "carnal intercourse", consensual or forced. The law had been introduced in nearly all territories governed by Queen Victoria. The reasons were obvious to British administrators. Homosexuality, they believed, allowed the spread of incurable diseases and hence must be curbed to protect the empire's soldiers and their health in far away shores. Its acceptance posed a threat to Victorian family values and the country's population growth rate. Preventing either scenario became necessary and British governments saw the need to make "carnal intercourse" a punishable crime. In 1950, when an independent India adopted a new constitution, its criminal code continued to include Article 377:

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.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section. (IPC, Art. 377) 

Article 377 continued as the code for prosecuting "carnal intercourse" involving any human and remained unchallenged because of its applicability in cases of rape and paedophilia. In a majority of the nations once part of the erstwhile British empire, such a law has since been redirected from a universal edict to one applicable only in cases of non-consensual sex or sex with minors. However, in India, neither the judiciary nor the legislature were concerted in trying to remove the law's applicability to consenting adults. As a result, homosexuals and transvestites have not only faced social prejudices regarding their sexual preferences but, for over 60 years since India became an independent country, they have lived here as criminals. 

Many defenders of 377 point out that no court of law has prosecuted an individual on the basis of their private sexual practices with another consenting human. Yet the presence of 377 in India's criminal code is reason enough for members of the "queer" community to feel discriminated against and feel hard-pressed at the sharp end of the law. 

The fear of being rounded up and put behind bars has prevented many homosexual men and women from coming out of the closet and has proven to be a stumbling block for agencies working for their safety and rights, working to promote safe sex and prevent the spread of sexually-transmitted diseases including AIDS. The latter is a major cause for concern since India has one of fastest growing number of people infected by the HIV virus.

To provide basic civil rights to individuals who have not harmed anyone and to prevent a deadly disease from becoming more rampant, the Naz Foundation and similar NGOs filed a Public Interest Litigation at the Delhi High Court in 2001, asking it to read down Article 377 and remove its applicability to consenting adults of the same sex.   

On 2 July, a Delhi High Court bench of Justices A.P. Shah and S. Muralidhar announced its decision to read down Section 377 of the Indian Penal Code, effectively begining the process of decriminalizing homosexuality in the country. The justices ruled that any law making consensual sex between adults of the same sex violates the fundamental rights of equality, non-discrimination and inclusiveness enshrined in India's constitution. They reasoned further that those who wish to retain the aforesaid clause in 377 on moral grounds must realize that no group of persons can be branded as criminal because of the state's moral disapproval. Constitutional approval would be necessary and the Constitution of India was based on the tenets of equality and inclusiveness. Nevertheless, the court very clearly specified that 377 would continue to apply to cases of non-consensual non-vaginal sex and sex with minors.

While the decision brought much joy to its beneficiaries who can no longer be rounded up as criminals because of their sexual preferences, there has been considerable debate regarding its social and cultural impact. Issues of sexuality and sex between heterosexuals are not openly discussed topics in India, hence the High Court's ruling seems preposterous to those who are afraid to allow it to enter public discourse. Religious leaders of  Hindu, Muslim, Sikh and Christian denomination have shown remarkable unity in pointing out the moral vicissitudes of the court's judgment.

B.P. Singhal, a retired officer of the Indian Police Services and a Hindutva ideologue lashed out at the court's decision in this interview with Open magazine. He claims he is not against homosexuals but wants 377 to remain as is so it may serve as a deterrent. The argument Mr. Singhal makes is rather convoluted and worth a read, with the veteran making remarks such as, "Lesbians only end up in suicide. Male-to-male breeds diseases. Female-to-female are harming themselves only." Comments such as these relied on a thinly-veiled current of xenophobia, suggesting that homosexuality is a corrupting western introduction to traditional, authentic Indian culture.

Supporters of the High Court decision point out that Article 377, not homosexuality, was an import from the west. Ashok Malik in the Asian Age, Renuka Narayanan in the Hindustan Times both argue that homosexuals have always existed and been part of Indian culture as evidenced in ancient scriptures and sculptures. While homosexuality was not always an approved practice, they claim it was not considered a criminal act unless involving a minor. Antara Dev Sen points out further that India being a secular state, the judiciary need not pay attention to the cries of religious leaders.

Those in favour of the High Court's ruling caution that it will be some time before Indians with alternate sexual preferences can really live as free and equal citizens. Firstly, as many legal experts have analyzed, the Delhi High Court ruling is applicable only to the state of Delhi. The ruling should serve as a precedent for future court cases, yet a judgment from the apex Supreme Court will be necessary to allow it to apply countrywide.

Secondly, India's political class, which has been asked to consider revisiting 377 by parliamentary action, is now scared to voice its opinion on the matter. In 2008, the Home Ministry had rejected any such plea as it claimed that homosexuality "immoral" and against the ethos of Indian culture. However, the Health Minister supported decriminalization of homosexuality in order to provide transparent access to healthcare facilities for all individuals. In June, Law Minister Veerappa Moily promised to consider the scrapping of archaic clauses in 377. Ever since, the minister and his colleagues have chosen to remain silent on the matter. In a country where religion is often a basis for garnering votes during elections, politicians are afraid to anger religious leaders who have come out against the High Court ruling.

The Supreme Court of India notified the government regarding a Special Leave Petition filed by two citizens challenging the Delhi High Court's decision. The next hearing for the petition is on 20 July, before which the government will have to take a stance on 377. It has been reported that due to a lack of consensus and the sensitivity of the matter, the government is likely to ask the apex court for an extension to "study" the high court's judgment.

The process of recognizing homosexuality and making provision for openly homosexual couples in the country's institutions will be a complicated one. India's military institutions have traditionally been closed to the idea of including homosexuals. In general, people prefer to not talk about homosexuality. In fact, columnists in some "vernacular" dailies argue that there is no need for any debate on the subject at all and unnecessarily certain individuals have chosen to make it a cause for concern. The "queer" community is delighted by the judgment. Some even went on to marry their same sex partners in the state of Punjab, despite the fact that the court announced no changes to marriage laws.

However, after the initial euphoria, there is much ground to be covered in allowing ordinary men and women to freely embrace their sexuality. The government and the Supreme Court's mettle will be tested over the coming weeks as they must decide how to keep the promise of equality and inclusiveness alive without any serious backlash from those who see changes to Article 377 as an attack on religious and cultural values.

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