Amendment of Section 377: The road to equality has never been straight

Amendment of Section 377: The road to equality has never been straight

Law | Jan 23, 2017 / by Sakshi Rawte
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A large sect of the Indian population would agree synonymously with the notion that individuals should be given the liberty of making decisions about their sexuality, sexual inclinations and significant others. But, the supreme law that governs us all, formulated by Englishmen in the Victorian era, is in complete contrast with this.

The section in question was initially drafted by Lord Macaulay in 1838, but it was only brought into effect in 1860 in the light of the Sepoy Mutiny. It is deeply rooted in the legacies of the British Colonial state. Section 377 was shaped on the Buggery Act of 1533, which was enacted under King Henry VII, exemplifying buggery (anal sex) as an unnatural sexual act against the will of God and men. It was seamlessly incorporated into the legal structure of our country. This archaic law still continues to govern our system.

“377. Unnatural offences. 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 10 years, and shall also be liable to fine.”

In plain words, this section puts forth that any kind of sexual relation between two consenting adults of the same sex is a punishable crime.  The phrase “against the order of nature” which includes acts of fellatio and anal sex are criminalized, even if they occur between a woman and a man. Even though it isn’t mentioned, it is implied that this section also invites punishment towards perpetrators of sexual abuse towards children.

Section 377 doesn’t criminalize particular people, identity or orientation. It identifies certain acts which, if committed are a serious offence. This impacts the LGBTQ Community the most. Members of the community cannot be arrested for their sexual orientation but they CAN be arrested for the sexual activities they engage in behind closed doors. Inherently, one can be homosexual, but engaging in homosexual sex can land you behind the bars. Another major glitch of this section being, even married heterosexual couples are forbidden from engaging in oral or anal sex. And if you’re unmarried, chances are, the consequences might be worse. People who look at the LGBTQ community with contempt are likelier to be more tolerant of corrupt politicians engaging in nefarious activities. Criminalization of gay sex, or any kind of consenting sex can’t be part of a progressing society.

This section, in a way violates our right to privacy entitled to us by the supreme law of the land, the Constitution itself. It tells the particular minority in question what they are permitted to do, even behind closed doors. In a liberal democracy like India, preservation of the rights of minorities is one of the most important prerequisites for a steady polity. The Preamble of our Constitution claims that the values of justice, liberty and equality shall be secured to all its citizens. However, the principles so highly praised in the Preamble are seldom seen in practice. Where is the social justice that was assured to all Indians? Where is the freedom of expressing oneself, through love and choice, that was guaranteed so boldly to each citizen? Where is the equality of status pertaining to dignity and bodily autonomy that was promised to each member of the democracy? Have these exalted ideals fallen short in the cases of homosexuals?

And it’s not only the LGBTQ community in question here. Heterosexual couples, married or unmarried, too are affected by this anachronistic law. It attempts to govern their expression of love via sexual behavior and dictates how they should be conforming to a sexual morality of bygone era.  Even though prosecutions of heterosexual people might be rare, they aren’t to be overlooked. What two individuals do to reveal their passion for each other is within the bounds of their own confidentiality; any third party making rules regarding it is invasion of their privacy and freedom.

Section 377 raises some paramount questions about the very foundation of our country’s ideals. Is freedom really present when one cannot express their desires? Is the right to life guaranteed without the right to love and be with the person we love? Isn’t this a coherent violation of our constitutional rights? What sort of freedom does the nation guarantee us when we are still shackled by obsolete laws?

Shashi Tharoor, former diplomat and Congress MP who is a private member of the Parliament, sought to introduce a bill decriminalizing homosexual sex and related behaviour by amending Section 377. The bill aimed at decriminalizing any form of sexual intercourse between two consenting adults regardless of their sexual orientation. Regrettably, 58 out of 73 members voted against the introduction of this bill, whereas only 14 were in favor and 1 member abstained from voting. The defiance of this bill, not once but twice, proves how much homophobia has become prevalent in the Indian society's mindsets. This bigotry is so evidently present that even our representatives manifest the same kind of prejudices in the Parliament.

Culture is one of the prerequisites for building a society. Seeing the disdain towards homosexuals and the indifference towards their appeals establishes how narrow it is. Homophobia is ingrained in our social perception. Our society regards the LGBTQ community as one that deviates from the sexual norms. However, what people forget is that these norms are more often than not quite arbitrary. Homosexuals are often treated condescendingly and in most cases are also victims of heinous hate crimes. There has been an immense increase in the phobic demeanors especially since the judgment of the Supreme Court, says Akkai Padmashali, the founder of Omdede ( a transgender rights group. )

The uproar around the scrapping of this law has been around for quite a while. But it lost it’s vigor as a greater protest was launched, one that demanded amendment of the archaic law. Repealing the law completely would translate to the other provisions of this section being scrapped. Nuances where sexual abuse of children is ensuing, sexual advances towards animals and perpetration of necrophilia. An invigorating petition filed by the Naz Foundation aimed at ameliorating this section, focusing on the welfare of the LGBTQ community. The petition was filed after the Supreme Court in 2013 overturned the Delhi High Court’s 2009 verdict that decriminalized gay sex. But the apex court’s decision left the activists pining for rights in a void.

Ironically, the apathy of the parliament regarding Section 377 is something that has rendered it possible for people from diverse classes, religions, sexualities and other social stratifications to collectively maintain a united front. This solidarity would have been unthinkable otherwise. Like Shashi Tharoor reminded, the nation needs to hear an open debate on this issue. As long as there is critical discourse over this present, there might be a ray of hope. If our former rulers who formulated this law could decriminalize it, why couldn’t we?


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Written By Sakshi Rawte

Lover of History and Literature. Feminist. Aspiring archaelogist.

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