We break down Section 377 of the Indian Penal Code, throw light on the stigma attached to it, delve further into what the laws of the land state and also offer first person perspectives on being gay in a society where archaic laws are still upheld
India has had its fair share of trifling issues in matters of human rights. Although witness to some of the most gruesome crimes like bride burning, dowry deaths and discrimination on the basis of caste (untouchability), our country has – nonetheless – emerged victorious by overcoming these social evils.
The Constitution of India upholds an Indian citizen’s right to freedom and equality, and also comes to include the right to live and love freely. Why then is this so-called ‘developing’ country lagging far, far behind when it comes to basic LGBT rights?
We firmly believe that this law is the cruellest of its kind as it takes away from an individual the basic right to live and to love without bounds. Section 377 acts as a source of evil that brings along with it strong social stigma, ostracisation from society and resulting emotional trauma.
Rapes, murders and political scams come to the fore every other day in a country like India. Yet, a government like ours chooses to forgo these atrocities and bring to the book innocent people who only wish to love openly. If the common justification for advocating this law is that homosexuality is against the Indian constitution, then, so are politicians who rob taxpayers off their money, rapists who scar women and murderers who take innocent lives. How does the right to love overshadow hardcore criminal acts that go unpunished for decades?
We believe that Section 377 should be altered for the better and the right to ‘Live and Let Love’ be made the premise on which this nation hence stands.
Discrimination and stigma toward the LGBT community
If being called a ‘criminal’ wasn’t enough, being gay in India also has a certain stigma attached to it. We debunk and make some sense out of the myths surrounding the LGBT community in India
LGBTs are the carriers of AIDS and STDs
What this basically means is that promiscuous straight men and women who hop from one bed to the next are saved from AIDS, but LGBTs are not. Sigh! To break it down – it’s not who you are that gives you AIDS or STDs, it is what you do that does so. Even straight men and women are carriers of both AIDS and STDs, so generalising along these lines is as bizarre as it is uncalled for.
All effeminate men are gay
Probably one of the most wide-spread stigmas of its sort, several people believe that men with slight or overpowering female tendencies are automatically gay. Although stupid, it is one of the most popular stigmas attached to being gay in India and across the world. In truth, there are several men who display effeminate characteristics, but are in no way close to being gay. It is just a temperament that they are born with or how they choose to be.
Being gay is unholy
Although varied branches of theology do not support being gay, Pope Francis, the leader of the Catholic Church, very poignantly said that we cannot judge homosexuals and bisexuals based on spirituality. Who are we to pass judgements then?
You can’t be bisexual and be faithful to one person
Against popular belief, bisexuals can be faithful to the person they are in a relationship with. Just because they are attracted to people of both sexes, it doesn’t mean loyalty and faithfulness cannot be expected. Often people state that bisexuals are confused and are attracted to people of both sexes for the purpose of experimentation. This is not true as a bisexual believes in loving irrespective of gender and are very clear about who they love when in a relationship.
Homosexuality is a psychological problem
As sad as it may seem, one of the first places a homosexual person is made to visit after he has come out of the closet is a psychologist’s office. For years, homosexuality has been deemed a problem that can be treated with the help of counselling and medications. Homosexuality and bisexuality are sexual orientations that cannot be treated or changed with the help of medications or doctors. Sexuality is inherent in a person. Just as a straight person can’t help being straight, a gay person can’t help being gay.
Homosexuality is unnatural
Sexual acts between two consenting adults of the same sex is often described as unnatural. To bring clarity to what is natural or unnatural, the closest inference can be drawn from ancient Indian mythology; a third gender has been identified in a number of Hindu texts. The Kama Sutra too has since its existence, always referred to a third sex. Along with this several carvings and sculptures created centuries ago, like those in the Khujuraho temple, have strong homosexual depictions. The fact that there are mentions of homosexual attributes and behaviour in these sculptures and in Indian texts, terming it as being unnatural is out of bounds. Besides, there are 1500 species of animals that display homosexual behaviour. Are they unnatural too?
“All human beings have equal worth and therefore straight or homosexual, everyone has the right to live with human dignity. I am all for ‘equal human rights’ for homosexuals, and to not treat them like some inferior species or second-class citizens.
Having said that, being a medical practitioner in the field of sexual medicine for over two decades, I have seen severe medical complications arising out of consensual sodomy or anal sex; whether between two homosexuals, or even when it happens between a man and a woman. The physical and emotional trauma of these victims stirs my heart and cannot go unmentioned in the midst of this debate of ‘de-criminalising consensual sexual behaviour in private between two same-sex individuals’.
I fully agree with every scripture that separates the person from the action. Therefore, I reiterate that while all human beings should be viewed and treated equally with the same human dignity by law and society, all sexual acts done by anyone – homosexual or straight, if causing physical or emotional trauma to another, should also be equally punished by the law of the l and.” – Dr Rajan Bhonsle, sexologist, Mumbai
The latest Supreme Court verdict regarding Section 377 has garnered criticism from all LGBT communities and allies. We dissect the jargon and simplify the legal status of homosexuality in India
Indian Penal Code
The Indian Penal Code (IPC) is the main set of laws used to govern criminal offences in India. The IPC is made up of many chapters which are in turn made up of sections. The section under which homosexuality has been criminalised is Section 377. Here is an excerpt of the section from the IPC:
SECTION 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 a term which may extend to ten years, and shall also be liable to fine.
Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
The section has been vaguely defined since it only criminalises unnatural sexual offences. There is no clear definition of what constitutes an unnatural sexual offence apart from the term ‘against the order of nature’. This becomes a problem since every judicial bench is free to interpret this section as they see fit in spite of following the letter of the law.
High Court Verdict
On 2 June 2009, a bench comprising Chief Justice of Delhi High Court A. P. Shah and Justice S. Muralidhar ruled in a case between Naz Foundation and Government of National Capital Territory of Delhi that Section 377 was ‘an unconstitutional and arbitrary law’. The following is an excerpt of the verdict:
We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution.
The bench upheld the laws against non-consensual sexual intercourse including minors. The court did not amend the law but passed a judgement on how the law should be interpreted.
The judiciary in India may not amend laws but only interpret them. This is the reason the Supreme Court bench made it clear in its judgement that it was up to the Parliament to amend the law if it sees fit.
This judgement was seen as a landmark in human rights for the LGBT community who are constantly persecuted in India. The High Court rightly pointed out that Section 377 is in direct violation of the fundamental rights of privacy, equality and nondiscrimination which are guaranteed by the Constitution for every citizen of India irrespective of their sexual orientation.
Supreme Court Verdict
On 11 December 2013, a Supreme Court bench comprising Justice G.S. Singhvi and Justice Sudhansu Jyoti Mukhopadhaya adjudged in a case that Section 377 was not in contradiction to the Indian constitution and thus effectively overruled the Delhi High Court’s verdict of 2009. An excerpt of the judgement can be found below:
While parting with the case, we would like to make it clear that this Court has merely pronounced on the correctness of the view taken by the Delhi High Court on the constitutionality of Section 377 IPC and found that the said section does not suffer from any constitutional infirmity. Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General.
The Supreme Court bench ruled that the High Court judgement overstepped the bounds of judicial review and that in interpreting the section differently, it was almost amending the law itself. The Supreme Court bench ruled that the legislature was free to amend the law as it saw fit since the Parliament stated that the law in itself was archaic. While the Supreme Court’s judgement does come across as a regressive step for a developing India, in the court’s purview, amendment of laws are only in the power of the legislature and not the judiciary.
The Constitution of India is the framework of documents that defines the fundamental rights of the citizens of India. The following articles in the Indian Constitution provide certain fundamental rights which cannot be denied to an Indian citizen under any circumstance:
Article 14: This article covers the right to equality under law which states that every Indian citizen shall be treated equally under the purview of the law. Article 15: This article prohibits discrimination against any Indian citizen on grounds of religion, race, caste, sex and place of birth, or all of them. Discrimination on the grounds of sexual orientation is in violation of this article.
Article 21: This article guarantees Indian citizens the right to life and liberty.
In accordance with the Constitution of India, it is clear that criminalising homosexuality is in violation of the fundamental rights granted to all Indian citizens. Indian citizens have the right to life and liberty which allows them to live in dignity. They are also granted equality and cannot be discriminated against irrespective of gender and sexual orientation.
Further, human beings have certain unalienable rights allowing them to choose and live freely. These rights are granted across most countries as they are in India itself. An Indian citizen should be allowed to follow his/ her sexual orientation without persecution. Criminalisation of homosexuality and crimes against homosexuals are unconstitutional and should be eradicated.
Countries that India can look up to
Although North Korea is commonly considered to be a highly repressive society, the government accepts that ‘many individuals are born with homosexuality as a genetic trait and treats them with due respect’. Legally, couples of the same sex can indulge in sexual activities in North Korea.
Nepal has impressively liberal laws concerning homosexuality considering it is a democracy in its infancy. In 2007, the Supreme Court of Nepal demanded that the government abolish archaic laws that discriminate against homosexuality. They are even considering legalising same-sex marriage. Maybe India, and the other South Asian countries, should take a leaf out of the legal books of their neighbouring state.
By virtue of having no laws against homosexuality, sexual acts conducted in private by consenting adults of the same sex are not a crime. There are no records of any laws being written in Vietnam to criminalise homosexuality. The constitution does not recognise same-sex couples; they do not receive legal protection like opposite-sex couples. However, the government has been engaged in an attempt to legalise same-sex marriages since July 2012.
Homosexuality was legalised in Bahrain when a new Penal Code was put into action in March 1976. The new code legalised sexual intercourse between consenting same-sex couples in private. However, the minimum age of consent for homosexuality is 21 years of age.
Is it a crime to be gay?
We ask the youth of India
I say for each his/her own. It’s like the height of [being] confused. Imagine people supporting heterogeneity in matters of heart demanding the whole world to be homogeneous in orientation! RASHMI SHUKLA, 25, STUDENT
Firstly, I’m not very comfortable with the whole gay thing. Unnatural? Yes, it is. It doesn’t affect me directly though. On the other hand I believe in choice. Every person has a choice, to love or hate something, someone, anyone. I don’t think it’s a crime, because there are many out there who can and should find suitable partners. I won’t eat vegetables if I have an option of beef. So yeah, it’s okay. Expecting the government to do the right thing is the crime. RAMIZ SHAIKH, 23, WRITER
Each and everyone is unique and everyone has their own dignity and everyone can choose their own way, but their actions must be proper and shouldn’t disturb the process of nature. Everyone must behave as per norms and must practice socially acceptable acts. Section 377 and what it states doesn’t matter. The matter is it is 100% opposite to nature. We all know that if we go against nature the result will be bitter, so we must ban gay and lesbian system. It can’t work in India. RAVITEJA REDDY GL, STUDENT
No, I don’t believe homosexuality is a crime. The fact that our democratic, 600-somethingyear-old country wants to make it one after decriminalising it for five years really puzzles me. It shows internationally what kind of values as a country we stand for. You can’t tell people they are free and then tell two consenting adults that liking each other is wrong. You don’t have to be supportive of being gay if you don’t want to. But you can’t deny someone’s basic right to love. ANOUD DESHMUKH, 20, STUDENT
Landmarks Human in Rights
We live in freedom in a democracy because our ancestors laid down their lives for this cause. Human history is bleak with inhuman behaviour, but it is also buoyant with acts of courage, decency and selflessness from time to time
Power to the people
Democracy is a fairly new form of governance. The Magna Carta, a charter that limited the powers of the monarch and gave more rights to the people, was signed in 1215, at a time when kings became too powerful. Later, the French and the American Revolutions laid the foundations of modern democracy.
Votes for women
However, power to the people did not include women or slaves. Women were second class citizens. They had no voting rights and not much say in matters of property and social conventions. Towards the end of the 19th century, the suffragette movement – the agitation to secure women voting rights – became a major talking point world over. New Zealand was the first country to give women voting rights in 1893.
Freeing the slaves
One person could own another like a common object for centuries. Africa was the largest slave market, but whites were sold as indentured labourers (temporary slaves) as were Indians. England outlawed the slave trade in 1772. Abraham Lincoln abolished slavery in the US in 1863.
Hitler believed that blonde-haired blue-eyed Germans were the ‘Master Race’. South Africa institutionalised Apartheid. The US too segregated people by colour. With the defeat of Nazi Germany, the rise of Martin Luther King, Jr. and later Nelson Mandela, racism was eventually abolished.
We are all the same
In 1948, the UN adopted the Universal Declaration of Human Rights which states that all people are born equal and have certain inherent, inalienable rights. Cruelty, torture, slavery, and discrimination on a number of grounds are prohibited.
Okay to be gay
The Stonewall riot of 1969, a protest against police harassment of LGBT people in the US, is considered the first breakthrough in gay rights. However, many countries by then had already decriminalised homosexuality: France in 1791, Brazil in 1824, Mexico in 1872; even Bahrain, Kazakhstan and Iraq (1976, 1998 and 2003 respectively)!
Out and proud celebrities
Indian LGBT activists
“I have always stated that gay rights cannot be won in the court room but in the hearts and the minds of the people. My fight is going to continue irrespective of whether we win or lose.” – Prince Manvendra Singh Gohil
TV personality Sushant Divgikar shows the world how liberating living outside the closet can be for an openly homosexual man who is sure about himself
Coming out of the closet
I was 18 when I came out to my closest set of friends. I first confessed that I am gay to my best friend Jui who is no more. She gave me the strength to confess to all my friends that I was gay. Shortly after, I admitted to being gay when my dad asked me. He was incredibly supportive and said, “You are my son regardless of your sexual preferences. Always remember that your mom and I have been nothing but proud of you.”
Becoming an LGBT icon
I was 21 years old when I had my TV debut for the UTV Bindass show Big Switch (season 3). By this point I was openly gay and now on national television. It allowed me to show the LGBT youth that once you accept yourself, people around you will automatically accept you. Later, I became an anchor for the UTV Bindass show Atyachaar Ka Punchnama. I made sure that people had a good impression about me because I was representing the LGBT community. It was a big responsibility.
My social life
95% of all my closest people are straight, and they understand that I am as human as them and I am not abnormal. I am always transparent and don’t hide anything from them.
My professional life
I have worked with wonderful people and have never faced any sort of humiliation, prejudice or ill feelings from my colleagues.
I never stop myself from doing what I want to do and what makes me happy. I was a part of Terence Lewis’ academy of dance as a senior trainer. I learned 4 different forms of martial arts. I was a VJ for UTV Bindass and I am a psychologist now. I have never restricted myself in any way.
The Supreme Court verdict
About Section 377 of the Indian Penal Code, with due respect to the judiciary, I am appalled and hurt more than anything else. There are a lot of contradictions. The law says we are free-willed and live in a democratic nation but we are denied our rights to live as per our will. It makes no sense.
Advice for those in the closet
If you need help coming out, we are there to help you come out and live a fearless life with dignity. As Lady Gaga says, “I’m on the right track baby, I was born this way.”
Monisha Ajgaonkar, owner of photographic company The Photo Diary, talks to Youth Inc about her life as an openly gay woman
Dealing with questions
When the opposite sex questions me if I am dating someone, I tell them I am happy and gay.
Acceptance in my family
My sister was always aware of my sexuality. And it didn’t make any difference to our relationship. My father got to know through a colleague who had figured out through one of my interviews. He accepted it. Luckily, my life never was about ugly confrontations and acceptance speeches.
My social life
In my social circles I was appreciated as a human being even more. I like to socialise, meet people. If anyone has an issue with me being gay then it’s their problem. It doesn’t stop me from being myself and interacting with people. I have learned this with time.
My professional life
Sometimes people mix my profession with my sexuality. Once, a client cancelled a shoot. They figured out about my sexual orientation. Being a photographer, I should be judged on my photography skills and not sexuality. Logic fails here. It’s ridiculous but I move on.
Since being out of the closet…
I have never faced any problems. I come across one or two people who are yet to come to terms with the fact that gays are also human beings and that is totally fine. Take your time.
The problem with being gay
I get upset when I come across straight/pretty girls. Haha.
The word of law
Thoughts overflow when I think about Section 377. It’s not about sexual preference but also about emotions. Gays do not go on having sex with each and every person they could get their hands on. We also have a choice. We do fall in love. We do want to get married and settle down. And all of this is certainly not a crime. Culturally speaking, these lawmakers need to be on par with the Indian stream of mythology and history. Moreover, they come across as jokers on international platforms for no rhyme or reason. They need an insight.
Will court rulings affect my life?
No way. I am going to get married to a girl few years down the line.
Advice for those in the closet
Move out of that closet. Smell the coffee. Be free.
Volume 3 Issue 8