Mohit, an Advocacy Officer for the Lawyers Collective HIV/AIDS Unit, looks at how India’s history of GLBT rights has hung on the British colonial legacy and Section 377.
The Indian concept of sexual relations prior to the arrival of British colonialism was of an attitude of toleration towards homosexuality and diverse sexual expression. However, the arrival of the British marked the criminalization of homosexuality, when The British Raj introduced anti-sodomy law in 1861 through Section 377 of the Indian Penal Code (IPC).
Section 377 continues to be an applicable law in India today. The thrust of Section 377 is to criminalize sexual acts that are ‘against the order of nature.’ This provision is based upon traditional Judeo-Christian moral and ethical standards, which conceive of sex for the purpose of procreation only. Thus, all penetrative sexual activity, other than penile-vaginal, between both heterosexual and same-sex couples, is considered to be against the order of nature and the law under Section 377.
Though Section 377 has implications for heterosexual couples, it has primarily been used only against homosexuals. By criminalizing private, consensual same-sex conduct Section 377 serves as a weapon for police abuses, such as extortion, harassment, forced sex, and payment of hush money. Additionally, the law perpetuates discriminatory attitudes towards same-sex relations and sexual minorities, which consequently, drives the activities of sexual minorities underground and in effect cripples HIV/AIDS prevention efforts.
On the brighter side of India’s GLBT history, the government recognizes the existence of the third gender (eunuchs). While laws specifically recognizing or regulating gender reassignment surgery do not exist, it is implicitly recognized as the Ministry of External Affairs allows people to change their gender in their passports if they produce relevant medical documents. Furthermore, there is an ever increasing awareness, reflected in newspapers, movies, television and other media, about GLBT issues.
A case in point is the legal challenge to Section 377 of the IPC. In 2001, Naz Foundation (a NGO working for GLBT rights) filed public interest litigation (PIL) before the Delhi High Court, where it is currently pending, challenging the constitutional validity of Section 377. GLBT groups have openly supported the litigation ensued by Naz Foundation, and noted personalities from the arts have even come out with an open letter in support of the repeal of Section 377.
The continued existence of Section 377 of the IPC is increasingly hard to justify in Indian society and there is momentum to repeal the law and pave the way for further GLBT law reform.
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