Section 377 India's Anti-LGBT law that was, and then it wasn't, and then it was

India’s relationship with LGBT issues can be summed up in just two words: it’s complicated. Indeed, it would be easy to take one look at stories of the way LGBT people have been treated in India and assume that it’s a country with deeply entrenched anti-queer attitudes. But as with so many aspects of Indian culture, the truth is much more complex than it first appears.

Section 377. These are another two words which define the way LGBT issues have evolved in India. This section of the Indian Penal Code – introduced in 1860 during the British Rule of India – has been extensively used to outlaw and punish non-heterosexual sex. This is the law:

“377. Unnatural offences: 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 term which may extend to ten years, and shall also be liable to fine.”

These 47 words have come to shape the discourse around LGBT issues in India. They’re also the stomping grounds of an increasingly heated legal battle.

Rumblings first began in 1991, when activist group AIDS Bhedbhav Birodhi Andolan instigated a campaign to have 377 repealed. Various other groups joined the struggle in the following years.

Finally, on 2nd July 2009 - nearly 150 years after the creation of 377 - the Delhi High Court overturned the law, in effect decriminalising non-heterosexual sex. The judgement was made on the grounds that the Indian Constitution has an underlying theme of inclusiveness, and that everyone ought to be assured a life of dignity and non-discrimination.

Just 4 years later on 11th December 2013, the Supreme Court of India set aside the 2009 judgement, arguing that it wasn’t a matter on which judicial intervention was required.

Section 377 remains an active part of India’s legal code to this day.

Sharif Rangnekar, an LGBT activist, says the Supreme Court’s decision had a massive impact on his life as a gay man.

“I do get anger. When someone tries to impose their sense of what life is and what you should be. That angers me. It angers me and makes me feel very frustrated of what it would be like to be absolutely free.”

“Because I don’t know what it is. I had that brief feeling from 2009 to 2013,” he said. “There’s an anger and a frustration for that having been taken away.”

Anjali Gopolan is the founder and Executive Director of The Naz Foundation (India) Trust – the NGO which has fronted the continuing the legal battle to have Section 377 removed. She says the law is problematic in a number of ways.

“I think the problem with a law like this is it doesn’t allow for the [LGBT] community to feel secure,” Miss Gopolan said.

“And also in this day and age it’s a really archaic law. It doesn’t make sense. We’re in the 21st century – it’s a part of our colonial heritage, and Britain itself has changed a similar law it had. So I really see no logic to have a law like this.”

She also questions the ambiguous way in which the law is worded.

“Who has defined what ‘carnal intercourse’ is? Who has defined what ‘against the order of nature’ is?”

“And frankly, at the end of the day, where is the logic for such a law? The argument about it being against our moral values and against our religion – all of that doesn’t hold good where everyone’s rights are guaranteed in the constitution.”

“So of course this law has to go.”

Kunam Davidson – an LGBT Activist, and writer for prominent LGBT publication Gaylaxy Magazine – says the law not only represents the undue remnants of British colonialism, but also that its introduction saw a shift in the way Indian culture views LGBT people.

“The legal authority 377 has on its citizens is completely stupid, meaningless and absurd. By any legal standard it’s just pointless. How can you harass someone on such and such grounds?” He said.

“Particularly because of these grounds 377 is built on, I think that is the precise reason homosexuality or any kind of non-heterosexual lifestyle has such become a taboo in Indian culture. It’s because of 377.”

“If you go back a little further in history and time, sexuality was much more diverse. We all know it was a Victorian law, and why it was passed, and what it was supposed to mean, and the implications of it. And the political aspect behind it.”

“The consequence of this is it has created a far worse social taboo than ever existed. British laws and values have divided the country.”

Historically and culturally, then, Section 377 represents a massive shift from the way LGBT people were traditionally viewed in Indian society.

India’s most prevalent religion Hinduism, for instance, is largely accepting of LGBT people, featuring several scriptural references to a ‘third gender’. What’s more, the Kama Shastra – a Hindu scripture concerned with the art of love – features elaborate descriptions of homosexual sex.

Ankit Bhuptani is the founder of Gay and Lesbian Vaishnava Association (GALVA – 108), an organisation dedicated to offering positive information and support to LGBT Vaishnavas and Hindus.

“We explore opportunities and solutions from mythology which talks about equality in Hinduism.” he said. “And putting this idea in front that Hinduism is not discriminatory, how Hinduism is a broad religion which accepts everybody including LGBT,”

“We have so many stories in our scriptures where gender is a fluid thing, where there is physical relations between gods and gods, and goddesses and goddesses.”

“And there are sons and daughters born out of it who are holy personalities of Hindu mythology. We do this so people know that it is not against their faith.”

In this way, Mr. Bhuptani says, the British law has had a massive symbolic impact.

The problems with Section 377 aren’t purely symbolic, though. Yes, it has altered the way Indian culture thinks about these issues, and yes, it harkens back to the British occupation, but it also has countless tangible impacts on the way Indian LGBT people carry out their day to day lives.

The Indian Police force, for instance, have allegedly used the law to harass LGBT people. A 2006 report from the Human Rights Watch found that police from Lucknow in Uttar Pradesh used Section 377 to persecute and arrest four men for operating a “gay racket” and engaging in “unnatural” sex.

What’s more, the last year has seen a 17% rise in the number of times 377 has been invoked.

Miss. Gopolan of the Naz Foundations says that Section 377 gives the police license to get away with this sort of harassment.

“The fact that you also have a very corrupt police force in play,” she said. “Why arm the police with additional ammunition to harass people?”

Mr. Rangnekar has been a victim of this sort of harassment.

“I was with my boyfriend, we were parked next to Lady Shri Ram College in Dehli. We didn’t know there was a festival, so there was extra police. Now, we weren’t really doing anything, we were just talking for a long time in the car.

The police came and started harassing us.

So, they played the good cop and the bad cop. He was taken to one side [of the road], and I was taken to the other. I was being asked questions – they thought that maybe I picked up this guy, or something like that.

But he knew everything about me, so they didn’t know what to do. They’d taken my car keys, my visiting card, everything. I said, “If there’s any troubles, come to my home.” And then they realised that there was no point going home, because it was no risk to me.

So they said, “Okay, we’ll call your office.” Now that bothered me. They used their power and [Section 377] to threaten and scare you. You can’t contest or fight them because you might get into a physical situation and you’re violated.”

Aside from his activism, Mr. Rangnekar has also had a long career in marketing. The world of business in India, he says, is not safe from the influence of Section 377.

“I myself faced this when I was the CEO of a company. There was a person, he ran a campaign over text message in Hindi and Punjabi and English, saying that you guys don’t have balls, you don’t have guts to be working for a gay person. Questioning masculinity of those other men in the office.”

“I was quite shocked, but it was the first time I had faced something like this – that in a professional environment I am being questioned about my personal life.”

Despite this, Udayan Dhar – the Project Lead for the business-focussed activist group MINGLE (Mission for Indian Gay and Lesbian Empowerment) – says that most large firms in India want to support LGBT issues.

“There’s a lot of interest in terms of being part of the LGBT inclusion journey which has just started in India. But I think where a lot of confusion lies is what exactly do companies do?” he said.

“We are still in the stage where a lot of companies are not comfortable to take up a leadership role in this area. That is where we’ve been facing a lot of challenge, and that is where the movement is very slow.”

He says Section 377 means many of them are afraid to do so for fear of the political and legal repercussions.

“That is why a lot of companies that are risk-averse don’t want to take steps sort of opens them up to future litigations. Of course none of that has happened up till now, but there’s just a lot of resistance to take that step.”

“That is where we’re up to, where we’ve already sold the business case, we just want a lot of other people to come on board and start on this journey.”

On an even simpler level, Mr. Dhar says Indian firms aren’t able to give basic healthcare and employee benefits, because to do so would require official government paperwork which Section 377 makes impossible.

He says this sort of risk-averse behaviour also carries over to education institutions.

“On campuses, a lot of senior level professors in some universities agree that we should do sensitisation or workshops specifically on issues of gender and sexuality.”

“But then there is some pushback from other elements on the campus.”

“Because this is illegal, by promoting this are we not going against the law?” he said. “And because a lot of these universities in India are partially funded by the government, they cannot take any risk in terms of doing anything that could be seen as going against the law.”

Access to healthcare for HIV positive LGBT people is also affected by Section 377.

Dr. Shrikala Acharya is the director of the Mumbai District Aids Control Society (MDACS), an organisation dedicated to controlling the spread of HIV/Aids in at-risk groups. She says the stigma Section 377 creates stops some LGBT people from accessing proper healthcare.

“We have challenges with MSM (Men who have sex with men) who have not come out with their behaviour status - who do not want to acknowledge it, even to their peers. So these groups, we do not know about them.”

Despite this, over 11,000 MSM are registered in Mumbai alone, and the program has been a success.

“Though Section 377 is still there, that has not hampered provision of services to MSM through the HIV Aids Control Program,” she said.

“So that is one of the strengths over here. In a sense, no victimisation because a person is identified as MSM. We continue to provide these services all over the country, and in this way we are deferring from Section 377.”

Activist Kunam Davidson is not convinced healthcare is so readily available.

“As long as 377 exists and it’s not revoked, I think healthcare is going to be affected,” Mr. Davidson said. “The law needs to go as much as people’s mindset needs to change. It’s still a factor and it’s still got a long way to go.”

He also says media coverage of LGBT issues and Section 377 needs to change.

“One of the problems in India is the fact that people don’t talk about it. Especially the media doesn’t want to talk about for the longest time.”

“And even if the media wanted to talk about it. Or politics or popular culture wanted to talk about it. They talked in a very derogatory way about LGBT. It’s often a matter of joke.”

Ankit Dhuptani echoes this sentiment, speaking about the creation of his LGBT magazine The Pink Pages in 2009.

“There was a need at that time because LGBT issues weren’t covered in the media, and even if they were covered they weren’t covered respectfully.”

“And there were no LGBT magazines or publications at that time.”

So what does the future hold for Section 377 and LGBT rights in India?

After the 2013 judgement, The Naz Foundation continued its work to have Section 377 removed from the Indian Penal Code. This included presenting a curative petition to the Supreme Court of India.

This petition is now being reviewed by a five-member constitutional bench, with the result likely to emerge in the coming months. Still, Miss. Gopolan from the Naz Foundation is hopeful for the outcome.

“I guess one lives and does this work because hope is always there somewhere, right?” she said.

“Otherwise you just give up and not do anything about it. Why would one carry on the fight if there’s no hope? I’m always hopeful.”

Miss. Gopolan says the particular circumstances of this judgement mean her organisation is expecting good news.

“They recently gave a very good transgender judgment – and it was in conflict with 377. Completely forgetting that transgenders [sic] are sexual beings.”

“So if the same court gave a very good transgender judgement, what’s stopping them from decriminalising homosexuality?”

For Mr. Rangnekar, a repeal of Section 377 isn’t just a chance to feel free again, it represents the opportunity for further steps towards LGBT equality.

“This can be a step towards marriage, towards different rights that are not there,” he said. “It will also empower businesses who want to do something. Who want inclusivity, who want diversity, but they don’t know what the response will be the legal side.”

“So there are so many things that actually follow through when the law is amended.”

“At this point in time in time if an order comes from the constitutional bench, I think the kicker in terms of the gay community would be huge. It will be hugely liberating.”

“Even the gay community for a while won’t know what to do with that kind of freedom.”

All photos by Kell Andersen

Special thanks to Athira Ramanathan

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