On 15th August 1947, India won its independence from the British Empire. This momentous juncture ended nearly 200 years of colonial rule and yielded complete legislative authority to India’s constituent assembly. Yet, whilst official autonomy was granted, imprints of Britain’s former command remained woven into India’s legal fabric. Today, queer Indians are still bound by the British Raj Law. Section 377 of the Indian Penal Code punishes the ‘unnatural offence’ of same-sex intercourse with life imprisonment or with imprisonment for a term which may extend to 10 years, and is liable to fine. Whilst formulated over a century and a half ago, this law lives on as a relic of British colonialism, and continues to have damaging effects on the lives of LGBT+ Indians. There is, however, room for optimism. Despite the persistence of social conservatism and reversals of progress, changes in social realities and mind-sets in recent years offers hope for a brighter future.
At the heart of contemporary justifications for Section 377’s continued existence lies a clear paradox. Indian judges and politicians have argued that the law is a reflection of the country’s societal values, and is an emblem of cultural authenticity. In 2003, the Indian Home Ministry said that decriminalising homosexuality would ‘open the floodgates of delinquent behaviour’ and would violate the public morality of the Indian people. Yet the idea that Section 377 originated as a display of true Indian identity is an illusion. The law was a colonial imposition, formulated and implemented by British colonial administrators. No native was involved in the construction of Section 377, nor was the law informed by local customary codes. Instead, it was imposed as part of a ‘civilising mission’ to foster European principles of morality amongst colonised peoples, punishing their supposed ‘sexual perversion’ and protecting colonial rulers from ‘depravity’. Section 377 did not grow from the roots of Indian soil, but was planted by colonial seeds. The contradiction lies in the fact that a law which was imported by British colonisers and based on 19th century Victorian morality, is now defended on the grounds of embodying the character of the Indian nation.
Since its imposition up until today, this law has resulted in great injustices for India’s LGBT+ community. It has legitimised state invasion into personal privacy, and provided a pretext for police harassment and abuse. Arbitrary detention in psychiatric hospitals and forced aversion therapy have not been uncommon. Section 377 has pushed people into living lives marked by secrecy and fear – homosexual men with HIV have been known to go untested due to fear of discrimination and prosecution. Finally, over and above punishing particular sexual acts, Section 377 has consigned an inferior status to certain individuals on the basis of who they choose to love, degrading human dignity in the process.
The trajectory of progress regarding LGBT+ rights in India has not been a linear one. In July 2009, the Delhi High Court decriminalised homosexuality, declaring Section 377 unconstitutional as it denied gay individuals the right to full personhood. Four years later in December 2013, India’s Supreme Court set aside the Delhi ruling and recriminalised homosexuality. More recently, in July 2016, India’s representative to the United Nations Human Rights Council abstained from a vote on the creation of a post of an independent investigator into LGBT+ issues. Such a reversal of progress, alongside wider resistance to change, is indeed disheartening, and might lead one to have a bleak view of the future.
But there is reason for optimism. The four years of freedom that the Delhi ruling initiated made a tangible difference. More and more LGBT+ Indians came out on social media platforms (including some high profile celebrities), major Indian cities hosted LGBT+ film festivals, and an increased number of soap operas and Bollywood films featured positive depictions of gay identities. During this time, homosexuality increasingly lost its status as a taboo topic in public discourse, something that could not easily be reversed, even with the 2013 Supreme Court order. Indeed, the reaction to the Court’s ruling provides further ground for hope. The decision initiated widespread fury, both in the media and society as a whole. A Times of India online poll conducted immediately after the ruling reported that 77 percent of those asked believed that criminalising homosexuality was a violation of human rights. Numerous curative petitions were also filed by various organisations and institutions to challenge the ruling, which are still under review today. Finally, progress made in recent years provides reason for confidence in the future. In April 2014, the Supreme Court issued a ruling that gave the option of a third gender, granting full legal recognition to transgender individuals. Members of the LGBT+ community saw this as a significant step towards gaining their rights and entitlements from the state. It is clear then, that whilst obstacles to equality still exist, the shifts in social attitudes in recent years will continue to pressure Parliament and the Courts to abolish Section 377.
Section 377 started life as a colonial imposition, but has, over time, mutated into a purported reflection of India’s true moral condition. Removing the law would not only liberate segments of the Indian population from fear and prejudice, but would also repair a historical wrong which has created inequalities. As tolerance and open-mindedness grow at the societal level, there is hope that the orientation of Indian law will follow suit, setting India on the path towards a more just future, where human rights and dignity are affirmed for all.
