In 1835, Lord Macaulay (the chairman of the first Law Commission of India) was given the mandate to devise the Indian Penal Code (IPC). Macaulay, like many of the other imperial overlords, was of the opinion that the ‘widespread homosexuality’ prevalent in the colonies was a special ‘oriental vice’, which needed to be christianised (or ‘corrected’).
To set this into motion, in the IPC of 1860, Macaulay inserted the now infamous §377, titled ‘unnatural offences’‘:
“Whoever voluntarily has carnal intercourse against the order of nature against any man, woman or animal…”
Placed between the offences of rape and theft, the provision made certain sexual acts criminal. This would hold even if committed between two consenting adults. After this, there were various judgments concerning §377.
Understanding Sec. 377
Subsequently, judgments concerning §377 across various courts in India focused on two attributes. These were intended to create an understanding of ‘carnal intercourse against the order of nature’. First, that it would have to be sexual intercourse which would not lead to the possibility of conception. Second, that is must involve some penetration (visitation of a member of one organism to the orifice of another organism).
On face value, §377 seems to criminalise sexual conduct rather than a particular identity. Looking at the manner in which it plays out in society, it criminalises an entire class of individuals. Including those for whom sexual intercourse may never fall under this restrictive category of ‘natural’.
Not only is the provision used as a tool by state authorities to harass, threaten and blackmail individuals belonging to the LGBT community, but the very existence of the provision on the statute has led to stigmatisation and marginalisation of the community – branding them as deviant criminals, who are then ostracised by society.
Challenges to Sec. 377
In 2009, in response to a writ petition, the Delhi High Court held §377 unconstitutional. The basis was that insofar as it criminalised consensual same-sex intercourse. This paved the way for recognition of basic human rights for India’s LGBT community.
However, the Supreme Court in 2013, overturned the decision and reaffirmed the validity of the law. A review petition, and upon its subsequent rejection, a curative petition were filed against the decision before the Supreme Court. The latter is being heard in July 2018.
There are multiple reasons why §377 needs to be struck down, and all of them find basis in India’s Constitution.
First and foremost, LGBT persons have a right to equality. Any law or provision, which impacts them disproportionately, is manifestly unjust.
Second, under constant fear of persecution, discrimination and prejudice, LGBT persons are unable to express their identity and/or orientation freely. Thus, they are not being able to exercise their freedom of speech and expression.
Third, the excessive shame and stigma attached to an individual belonging to the community impinges their right to a dignified life, often leading to their withdrawal from society.
Fourth, when discrimination can accrue based on something as private and intimate as sexual conduct, an individual’s right to privacy is invaded.
Finally, this branding of ‘criminality’ denies LGBT persons a host of other rights including their right to healthcare, right to form associations etc. And it is this reason why §377 and the treatment meted to India’s LGBT citizens, needs to be rejected.
The human side to law
The question, eventually, is one of dignity; of our friends, neighbours, employers, employees, who wake up in the morning, go to work and participate in public life, but are made to feel excluded on account of who they are and who they choose to love.
And while the law is important, it is not enough. The duty now falls on each and every citizen of this nation, to flood these values into those tiny crevices in which the law cannot possibly reach. To uphold acceptance, and not just passive tolerance. To embrace those who are different from us as equals, not expect them to conform to our standards of how we think they should be. To create safe spaces, where everyone is comfortable enough to express themselves freely, and to inject a lot more sensitivity, empathy and love into our surroundings.
Only then can members of this community, which has been historically disadvantaged, shed the cloak of shame and inferiority and achieve their true, full potential.
About the Author
Sanchit Saluja is a recent graduate of National Law University, Delhi. He enjoys reading up on gender & sexuality, and is interested in philosophy, writing and psychology.