The Humble Beginnings of Section 377

The Indian Penal Code had a new entrant in 1864, during the British rule of India. Section 377 was modelled on the Buggery Act of 1533 and was used to criminalize sexual activities ‘against the order of nature’.

It states that 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.

But there was a huge amount of people that were affected by this particular act. While they technically weren’t initially targeted, homosexuals were soon taking the brunt of this unorthodox law. Apart from this, sex with minors, non-consensual sexual acts, and bestiality are all a part of Section 377. But has it always been this way for homosexuality in India?

History of LGBT In India

While most people believe that homosexuality has been an influence of the West, there are a huge number of ancient Indian texts which are relevant to modern LGBT causes. While religious Hindu texts don’t mention injunctions of homosexuality’s morality, it has taken various positions, ranging from homosexual characters and themes in its texts to being neutral or antagonistic towards it. From mentions in the Rigveda to the ancient Indian text Kamasutra; homosexuality was a part of our culture.

Despite popular belief, multiple historical literary evidence indicates that homosexuality has been prevalent across the Indian subcontinent throughout history. And while it wasn’t inconvenient, homosexuals were considered inferior in the 18th century during British colonial rule. The Arthashashtra, an ancient Indian treatise on statecraft, mentions a wide variety of sexual practices which, whether performed with a man or a woman, were sought to be punished with the lowest grade of fine. So, while homosexual intercourse wasn’t sanctioned, it was treated as a very minor offence. And several kinds of heterosexual intercourse were punished more severely.

While ancient times didn’t consider homosexual intercourse a major offence, the Mughal empire combines several pre-existing Delhi Sultanate laws into the Fatawa-e-Alamgiri, which consisted of a common set of punishments for Zina (unlawful intercourse).

And while the Goa Inquisition prosecuted the capital crime of Sodomy in Portuguese India, excluding lesbian acts; the British Raj criminalised sexual activities “against the order of nature”. It was instituted throughout most of the British Empire due to the Christian religious beliefs of the British colonial governments and included homosexual sexual activities under Section 377 of the Indian Penal Code in 1861.

But had anybody been convicted under Section 377? According to the first study of homosexuality in India by Shakuntala Devi in 1977, the conviction was rare with zero to none for homosexual intercourse in the 20 years to 2009. Although according to the Human Rights Watch, the law was used to harass HIV/AIDS prevention activists, along with sex workers, men who have intercourse with men, and other LGBT groups. They documented arrests in Lucknow of four men in 2006 and another four in 2001.

While homosexual intercourse was a criminal offence from the introduction of Section 377 of the Indian Penal Code in 1860 until the Delhi High Court’s 2009 decision in Naz Foundation v. Govt. of NCT of Delhi, the first successful attempt at decriminalization of Section 377. After the Delhi court’s ruling was overturned in 2013, homosexual intercourse was re-instituted until the Supreme Court of India’s 2018 ruling in Navtej Singh Johas v. Union of Indian, the second and final attempt at decriminalizing this colonial-era law. Hence making it an offence for a person to voluntarily have “carnal intercourse against the order of nature.”

Section 377 has been decriminalised twice in Modern India, but why did it take two tries to get rid of this age-old law? Let’s find out.

Naz Foundation v. Govt of NCT of Delhi (2009 – 2013)

Naz Foundation v. Govt. of NCT of Delhi is a landmark Indian case decided by a two-judge bench of the Delhi High Court, which held that treating consensual homosexual sex between adults as a crime is a violation of fundamental rights protected by India’s Constitution. Justices G S Singhvi and S J Mukhopadhaya observed that homosexuality should be seen in the light of changing times, while also because things were different 20 years ago compared to now.

The bench also pointed out that gay sex was not considered an offence prior to 1860 while referring to paintings and sculptures of Khajuraho as proof. Unfortunately, according to Senior Advocate Amrendra Sharan, on behalf of the Delhi Commission for Protection of Child Rights, observed that social issues cannot be decided based on sculptures. And the apex court bench observed that homosexuality should not be seen only in terms of sexual intercourse. Alongside this, they were also hearing petitions filed by anti-gay rights’ activists, political, social, and religious organisations which have opposed the Delhi High Court verdict decriminalizing homosexual behaviour.

However, in December 2013, India’s top court upheld the law that criminalises gay sex, in a ruling that reverses a landmark 2009 Delhi High Court order which had decriminalised homosexual acts. The 153-year-old colonial-era law has always been interpreted by the Indians as condemning a same-sex relationship as an ‘unnatural offence’ and consider it punishable by a 10-year jail term.

The Journey from re-institution to decriminalization (2013 – Present)

Upon the reinstitution of Section 377, multiple protests took place across India, thus resulting in political activism across political parties declaring their support for the law’s repeal. By April 2014, the month of the upcoming election, major political parties like the Aam Aadmi Party, the Congress and the Communist Party of India (Marxist) were supporting the decriminalization of homosexual relations in their election manifestos, while the Bharatiya Janata Party opposed said decriminalization. Despite this, their state general secretary, Vanathi Srinivasan, released the first book on gender queer in Tamil and LGBTQIA by Srishti Madurai in July 2014.

A dating platform called Amour Queer Dating was launched in India in June 2016, for LGBTQIA+ people seeking long term companions, while the first Bhopal Pride March was conducted in May 2017, amassing a total of around 200 members.

But 6 September 2018 will always be an incredibly important day for the community. The Supreme Court of India invalidated part of Section 377 of the Indian Penal Code making homosexuality legal in India, striking down the colonial-era law that made homosexual intercourse punishable by up to 10 years in prison.

What does this mean for the future of LGBTQIA+ in India?

With the 153-year-old colonial-era law being decriminalized, it opens a lot of possibilities for the LGBTQIA+ community. While some things aren’t still set in stone, it has given most of us the freedom to be ourselves and love whoever we want regardless of their sexual orientation or gender. If you want to reach out to someone and/or find out more about the community; look at this list of links for organisations and initiatives:

The Humble Beginnings of 377 is part one of my Section #377 series. Keep looking at this space for more.

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