Chapter 5: Article 377 of India’s Penal Code Repealed

Constructions of Homosexualities: Past and Present

On September 6, 2018, India’s Supreme Court unanimously ruled to decriminalize gay sex in India (Raj, 2018). In doing so, they lifted a ban on gay sex established in Section 377 of the Indian Penal Code of 1860, which criminalized “carnal intercourse against the order of nature.” (The law also outlawed rape and pedophilia, which remain illegal.) The Penal Code was instituted by the British when India was under its colonial control, and was based on a law passed by the parliament in England in 1533 (What is Section 377?, 2018).

For those who were found guilty under Section 377, the punishment could include a fine and up to life imprisonment (What is Section 377?, 2018).

It was not the first time that Section 377 was rejected by the Indian judiciary. Previously, in 2009, the Delhi High Court (which is under the Supreme Court) ruled that Section 377 was unconstitutional when applied to consenting adults. However, in 2013, the Supreme Court of India overruled the High Court’s decision, saying that only India’s parliament could void the law (Raj, 2018). The result of the 2013 Supreme Court decision was to allow Section 377 to stand (Moskowitz, 2013).

Homosexuality in India as a Western Import

As is the case in various parts of Africa, many Indians have asserted that homosexuality is a Western import (see Chapter 5: Constructions of Homosexualities). For example, the former health minister of India, Ghulam Nabi Azad, called homosexuality a disease which is “found more in the developed world, [and] has spread in our country” (Telegraph, 2011). However, Gayatri Gopinath, a queer and postcolonial studies scholar, has noted that “it’s homophobia that’s the import, not homosexuality” (Moskowitz, 2013).

The Supreme Court’s Decision

In making its decision to decriminalize gay sex, the court’s Chief Justice, Dipak Misra, observed that such punitive laws erode the “right to choose without fear” a partner and enjoy “a basic right to companionship” (Raj, 2018). Chief Justice Misra asserted: “The rights of the LGBT community inhere in the right to life, dwell in privacy and dignity, and they constitute the essence of liberty and freedom.”

Justice Rohinton Fali Nariman concluded that Section 377 was “capricious and irrational” (Raj, 2018), and Justice Dhananjaya Teshwant Chandrachud cited queer scholars such as Ruth Vanita and Eve Sedgwick to explain “how social norms make heterosexuality and binary gender appear natural while making sexual and gender non-conformity ‘unnatural’” (Raj, 2018, para. 8).

Senthorun Raj, a lecturer in law at Keele University, argued that the Indian Supreme Court’s ruling goes “further than comparable jurisprudence in the US and UK” because it is not only about “same-sex intimacy in the bedroom,” but also asserts that the gay community must be able to “navigate public places on their own terms” (Raj, 2018, para. 9).

Opportunities for research: How has the overturning of Section 377 changed life for the gay community in India? How has it affected public perceptions of the gay community in India?  What have been its effects on the Indian gay rights movement and its struggle for gay rights in India more broadly? What rights does the gay community in India enjoy vis-à-vis employment, housing, healthcare, education, etc.?

References

Moskowitz, P. (2013, December 14). Anti-gay ruling in India sparks fears of historical rewind. AlJazeera America. Retrieved from http://america.aljazeera.com/articles/2013/12/14/anti-gay-ruling-inindiasparksfeelingsofhistoricalrewind.html

Raj, S. (2018, September 11). What does it mean to love in Indian law? Quartz India. Retrieved online at https://qz.com/india/1385607/section-377-how-indian-judges-wrote-lgbtq-love-into-law/

Telegraph. (2011, July 5). ‘Homosexuality is a Disease’ Says Indian Health Minister. Online video clip accompanying online story: Indian minister claims homosexuality is Western 'disease.'

What is Section 377? India Today. Retrieved online at https://www.indiatoday.in/india/story/what-is-section-377-1333115-2018-09-06

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