1. What is section 377?
Section 377 of Indian Penal Code criminalises carnal intercourse against the order of nature and is punishable with 10 years of rigorous imprisonment. In other words, the law criminalises any form of non-peno-vaginal intercourse thus criminalising consensual sexual activity between two males or females. The law clearly targets homosexual minority in the country and penalises their sexual activities.
2. Why was Section 377 imposed?
Ancient Indian society had great tolerance towards homosexuality and gender identities. Many historical and cultural literary evidence including religious texts and homoerotic sculptures on the temples of Khajuraho prove that homosexuals and transgenders were an integral part of our society. Relying heavily on conservative Christian homophobic ideology British colonial power enacted Section 377 in India in 1860 to ban gay sex which according to them was unnatural and immoral. Contrary to the beliefs of many it’s not homosexuality that came from the west but it’s actually homophobia which has western origins, making this law an ultimate homophobic legacy of colonial rule.
3. What has been the impact of imposing Section 377?
Section 377 is often used to harass and intimidate members of LGBT community. Police officers are known to exploit homosexuals by demanding money to let them off the hook, in many cases homosexuals are beaten up and tortured. Extortion by private individuals are also very common, in such cases, victims are blackmailed and repeatedly abused. Victims cannot seek legal aid as the law will pin down the victim instead, with no social or legal support they are forced to suffer in silence. For many economically backward sexual minorities like the transgender community – extortions, evictions, violence and random arrests are part of their day to day life; many are forced to resort to sex work or begging to survive.
4. How did the LGBT activism start in India?
The history of LGBT activism in India can be traced back to 1986 when veteran journalist Ashok Kavi became the first person to come out in modern India. Since then the LGBT activism in India has focused on deleting section 377 from Indian Penal Code.
In 2009, a two-judge bench of Delhi high court struck down section 377 calling it unconstitutional because it violates the fundamental rights enjoyed by all citizens in this country. This landmark decision is often cited as the first breakthrough in the quest of de-criminalising gay sex. Soon after that in 2009 elections committee of India didn’t obligate citizens to choose male or female while filling ballots they were given the liberty choose the third option of ‘others’ corresponding to the gender they identify with, this decision also helped transgenders to contest elections. These two landmark decisions offered a perfect conclusion to a long fought battle but the celebrations didn’t last long.
5. What have been the views of the apex court on this issue?
In 2013 Supreme Court reversed Delhi High court’s decision and reinstated section 377 re-criminalising gay sex. The arguments put forward by the court to bring back section 377 didn’t sound convincing. The court ruled that the decision to revoke section 377 lies with the parliament and judiciary doesn’t have a say in it.
Supreme Court by letting parliament decide over section 377 gave the majority of this country the authority to decide the rights for the minority which is misleading. Why? Because repulsed and discriminating majority will never approve of the rights of minorities, it is the duty of Supreme Court to safeguard the rights of minorities.
However in 2017, after the Right to Privacy verdict, the SC tore into its own judgment and observed that sexual orientation is an essential attribute to privacy and must be protected.
6. Where there any attempts made by the politicians to de-criminalise homosexuality?
There are people who believe it to be a disorder including prominent ministers like Subramanium Swamy but WHO (World Health Organisation) removed it from the list of mental illnesses way back in 1992.
In 2015, when Shashi Tharoor introduced a bill to de-criminalise homosexuality, the bill was not allowed to be tabled. The ministers in the majority voted against the discussion of the bill without even going through the contents of the bill which displays the reluctant societal attitude towards homosexuality. People in our society fail to acknowledge the spectrum of sexualities because more than half of the people have no idea about the existence of such sexualities. Sex is never openly discussed in India and self-formed opinions influenced by prejudices about sex and sexualities are more than often misleading. There is a dire need to advocate society.
7. Do we have a law to protect the transgender in the country?
In 2014 Supreme Court recognised transgenders as the third gender in our country and has directed state and central governments to craft laws to grant legal recognition to the transgenders. Laws should aim at bringing transgenders on equal footing and shield them from negative societal attitudes.
On Feb 2016 Supreme Court accepted the curative petition to review its 2013 decision which reinstated section 377. The court referred the case to the Constitutional bench who also will assess the Constitutionality of section 377. This is the last ray of hope for the LGBT rainbow movement in India.
8. Lastly, what is it to be a gay in one of the largest democracies in the world?
Well, being a gay in the world’s largest democracy is no less than a living nightmare. Pre-conceived notions, value system, moral ideas of what is right and what is wrong has created a social wall which is impermeable to the liberal ideas including homosexuality.
Gay rights are often downplayed as gay issues and are sidelined as a subject which holds zero relevance in our society. They are denied basic fundamental rights promised by our Constitution thus demeaning their right to live life with dignity. Section 377 allows people to peep into the lives of people invading their right to privacy. Members of LGBT are frowned upon although the constitution prescribes reformative measures to protect the minority from discrimination but it doesn’t apply to the LGBT community.