An Unnatural Offence The criminalisation of India's LGBT Community

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.”

While the political fight continues for India’s LGBT community, Bombay Dost remains a testament to their pride and strength. Mr. Row Kavi says it functioned like a tool for knowing your place in society and what to do about. Advice such as how to protect personal privacy and how to contend with the police were contained in first run of 600 printed newsletters in 1990. Mr. Kow Ravi was completely awestruck at the initial response.

“We started receiving a huge amount of mail, sometimes between 3000 and 4000 letters per week. It was like the floodgates had opened so we knew there were people out there asking for help. In many ways Bombay Dost was a catalyst in the gay movement. It helped mobilise types of aware gay men who were very clear about their identity but didn’t know they had any place in society.”

Mr. Row Kavi says that besides the legality of non-heterosexual sex, the primary issue facing the LGBT community is the self stigma of not accepting yourself as who you are, and also the social stigma of being gay in a very heterosexual society.

Ashutosh Sankar is Mumbai student who is cautious about revealing his identity as member of the LGBT community.

“The thing is that nobody actually knows that I am LGBT and I belong to the LGBT community. Today in India no one will accept it. No one will expect somebody to be LGBT and even then they wouldn’t accept it. So it’s better not to say, society doesn’t encourage this, never. Sometimes I have to check my behaviour and manage it so I’m behaving properly. It counts a lot the way people see me in India.”

Mr. Sankar is also an enthusiastic film maker who has been working on a concept for a film that deals with LGBT issues in India.

“I like making movies and I love making movies on social issues but I’m not sure if I should do it or not. It’s a risky thing for me to make but I’d like to challenge and change the mindset of people. We need our freedom so we can express ourselves and we can start to change mindsets. It might not happen for another ten years from now but we need the laws to change as a start. We at least need a beginning to start from so everybody accepts the LGBT concept.”

Made with Adobe Slate

Make your words and images move.

Get Slate

Report Abuse

If you feel that this video content violates the Adobe Terms of Use, you may report this content by filling out this quick form.

To report a Copyright Violation, please follow Section 17 in the Terms of Use.