As industry and Indian lives are bettered by opportunities and devices brought by the wave of the new technology revolution, the rights of India’s sexual minorities are left in the dark, shackled to the colonial oppression of the past.
Late last year, the fight to repeal section 377 of the Indian penal code was again voted down by an overwhelming majority in the Indian parliament. Section 377 is derived from the centuries old British penal code which was implemented – and still stands today – in many of the former British Colonies, including India. The code relates to Unnatural offences, and essentially criminalises ‘whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal. The punishment for such a violation can be up to life imprisonment.
The law was introduced by the British in 1860 – recently considering India’s rich civilisation which dates back a few millennia. And the effects are still felt today. Not because the law is still active, but because a civilisation whose society which strongly values community and family bonds, for the most part has forgotten the richness and diversity of her former pre-colonial self.
Anas Khan, a master’s student in law at Mumbai’s Amity University, says that it’s important to begin to understand the history of sexuality in India.
“There is a verse in the Rig Veda – one of four texts which are the most sacred in the Hindu religion – which can be considered the most important, and says; ‘whatever seems unnatural, is natural.’ This is the word of god so it is infallible. In the early Vedic period, homosexuality was never a curse or related to apostasy. If you analyse the historical aspect, history as ancient Indian history, homosexuality was prevalent in society and accepted as well.”
This historical background is also emphasised by Ashok Row Kavi, editor-in-chief of BombayDost, India’s first LGBT publication.
“It’s very interesting to show how a colonial power can shove their laws and moral code down your throat. India had never had a law like this for over 3000 years and suddenly ended up with a law that was brought by the British. The great Indian nationalists say that homosexuality was brought to India by the British, but what they actually meant was homophobia, not homosexuality. So this play between the different cultures really didn’t fare very well for us. The point is that this law is a symbol of exactly what is wrong, the British did this to destroy the edifice of India, there are homosexual gods, there are homosexual cultures, and there were about 5 genders that were known. It was the British who introduced the binary gender system and all this crap that came along with it.”
Overturning the law has occurred in the past. In 2009 by the Delhi High Court ruled in favour of a nine year long petition to repeal the 150 year old code. But it was reinstated by the Supreme Court of India in 2013, as the section 377 of the Indian penal code was judged to not actually be unconstitutional.
Mr. Khan explains that “From one point, the Delhi high court observed this entire judgement from a social approach. But the Supreme Court took to it with a legal approach, so whatever is not in the provisions of Indian statutes cannot actually be imposed in society. If a judgement comes in the support of decriminalising homosexuality and a complete sweeping of article 377, the change would need to come about from the parliament of India. The parliament is a law making body; the Supreme Court only a law interpreting body.”
Mr. Row Kavi recognises the difficulty that the movement against section 377 faces.
“To roll back this stuff is proving a herculean effort because our laws are based on British jurisprudence. The constitution of India, drafted by Indians has enormous respect for individual human rights, the right to autonomy, and not to be discriminated against according to caste or community, and yet the political identity is not for an individual. The politics clashes with the constitution and nobody seems to see that conundrum. On one hand you have a constitution that respects the individual as somebody who’s worthy of equality under the law, and then you have a political system which only accepts identities based on caste communities and ethnicities, so it is a huge hotch-potch, it’s a civilisation in transition.”