Section 377: The Journey towards Sexual Freedom

History was created in India on September 6, 2018, when a five-member bench of the Supreme Court made major changes to Section 377 of the Indian Penal Code and decriminalized homosexuality. It came as a huge relief for the LGBT (lesbians, gay, bisexuals, transgenders) Community, which had been forced to live in fear, as persecution in the name of the law was not uncommon for people with alternative sexual orientations or preferences.

It is rather laughable that for all these years, we clung on to a law that had its origins in a Victorian interpretation of morality, and enacted as far back as in 1860 by the ruling British. The Victorian Age, as students of history would know, was one of the most repressive ages in the history of Britain. Not only did Queen Victoria proclaim, “We are not amused”, the 19^th Century itself was one of sexual prudery and repression pertaining to women. The country, of course, exported this extraordinary attitude to all the domains, which it annexed and ruled for many years. That repression, however, led to discourses on sexuality and paved the way for modern thoughts on the subject.

Homosexuality is usually considered deviant behavior and therefore ‘unnatural’. But what is normal, and more importantly, why should there be any judgement as to whether the normal is good and therefore the abnormal bad? Just because those who are not attracted to the opposite sex are in a minority? It is as good as branding left-handed people as criminals then, because they are in a minority compared to the overwhelming majority of right-handed people.

Rapists are criminals, murderers are criminals, thieves and robbers are criminals because they harm people and harm humanity; how can we in a modern democratic society even think of pointing fingers at people who express love in a different manner and do no harm to anyone? It all boils down to who are the real enemies of society. If transmission of sexual diseases could be a reason against homosexuality, that argument would have equal force against heterosexuals. And there are preventive measures and treatments that can limit the transmission of STDs, no matter what your sexual preference.

There is nothing in ancient Indian history, either in the scriptures, mythologies or sagas, written or handed down verbally, that homosexuality was ever frowned upon or that there was any kind of discrimination against the homosexuals. At the best, there was ridicule or even tolerant amusement, but definitely no persecution. Eunuchs or hijras, as they are known, have always been tolerated and accepted as part of our intrinsic culture. They had their own uses on certain occasions. They were used as bodyguards, royal confidants, and friends. Homosexuality became a crime in India only with the advent of Western influences on our culture.

The genesis of Section 377 can be traced as far back as the 16^th Century in the reign of King Henry The VIIIth, when the Buggery Act of 1533 was passed. Under this Act came unnatural acts of sex such as bestiality, and to a certain extent, homosexuality. In 1828, this law was repealed and replaced with the Offences Against the Person Act, which brought rapists and homosexuals on a common platform and allowed for their prosecution. This particular Act was the actual forerunner of Section 377, which contained many of the provisions of this earlier Act. It was Thomas Macaulay who laid the foundations for Section 377 in 1838, giving it its final shape around 1860, right after the Great Indian Mutiny. Ironically, the UK decriminalized homosexuality in 1967 (under the Sexual Offences Act), while same sex marriages were allowed in 2014.  

It was not that Section 377 was allowed to run unchallenged in India. Gay right activists, proponents of sexual freedom, have been constantly chipping away at this archaic law, taking every opportunity to file cases at various levels of the judicial system. The movement acquired greater momentum at the turn of the century when a non-government outfit, the Naz Foundation, filed a petition in the Delhi High Court in 2001 challenging the provisions of Section 377 as inapplicable to consenting adults among the same sex. The case dragged on for a couple of years before being dismissed in 2003 on the grounds that the Foundation had no standing in the matter. The Foundation took the matter to the Supreme Court, which directed the lower court to accept the petition. As we know in 2009, the HC actually gave a verdict in favour of the LGBT community by ruling that sexual acts between consenting adults could not be viewed as a crime. The court further said that this judgement would prevail until the controversial section was amended by the government.

This judgement sparked a flurry of appeals in the top court, actually challenging the authority of the High Court to change a law that had been passed by Parliament. It was on the basis of all these appeals that the Supreme Court took up the matter, and then in a volte-face in December 2012, overturned the HC’s decision and it was back to persecution times for LGBTs. The SC’s stand was that it was up to Parliament to make any changes and that the HC judgement was not tenable in the eyes of the law.

The top court’s current judgement is the culmination of relentless lobbying and untiring efforts of every individual and organization concerned in the matter. It truly embodies the rights to freedom and equality, as enshrined in our Constitution, and we can be rightfully proud today that we as a society, at least legally, have taken a very important step in safeguarding the democratic rights of all citizens. It augurs well for the future and holds out hope for further modifications in laws, such as treating marital rape as a crime and bringing it under the overall ambit of crimes against the vulnerable. It also lights the path for other countries to follow, who follow discriminatory practices, especially within the subcontinent.

Janaki Krishnan (Author)