Section 377/ Homosexuality in India

The writer Vikram Seth, along with a group of activists, recently signed an open letter directed to the Government of India and the Delhi High Court, asking it to repeal Section 377 of the Indian Penal Code. This is the section that prohibits sexual relations between men as well as other "unnatural" acts. Amartya Sen has put out a follow-up open letter with dozens of prominent Indian intellectuals and celebrities signing on.

Human Rights Watch put out a report in 2002 criticizing the law because it weakens efforts to mobilize against AIDS. In the NYT Somini Sengupta mentions that the government's own National AIDS Control Agency has stated that the law hampers AIDS prevention and treatment programs.

The key actor in all this a group called the Naz Foundation India Trust, which sued the government in 2004 to request the repeal of the law. The case was initially refused by the Delhi Court, but the Indian Supreme Court required the Delhi Court to examine the case on its merits. The next hearing is scheduled for October 4. The recent agitations seem to be oriented to influencing the outcome of these particular hearings.

For reference, here is the text of the 1861 law:

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. (link)

This is a very bad, outmoded law. It is, for one thing, euphemistic to the point of absurdity. Who exactly defines what is "against the order of nature"? I believe the earlier versions of the Penal Code didn't include the "explanation," so one obvious question is whether it includes, to be quite direct, everything but the heterosexual missionary position. (The term "sodomy" once included oral sex as well as masturbation; it is still only euphemistically defined as "any sex act that does not lead to procreation".)

More generally, the law has many deleterious effects that its critics have explored. Let's have a look at some of these arguments, as well as the government's response to them so far.

Here are some quotes from a speech given Aditya Bondyopadhyay (of Naz Foundation) which makes many good points:

Very few cases on this law have actually reached the upper courts level in all this time, but the law continues to be a potent tool of oppression. It provides the impunity to a venal police to extort money, blackmail, indulge in violence, and extract other favors, including sexual favors, by dangling this law on homosexual males and hijras, a traditional social group of transvestites and transsexual persons. It impedes sexual health promotion activities like HIV/AIDS Interventions amongst same sex attracted males. It discourages reporting of male rape, and therefore encourages such rape, often by police. In sum, it disrupts the social existence of all same sex attracted persons, erodes their dignity and self respect, and reduces them to a sub-human level of existence.

Aditya Bondyopadhyay also quotes from the government's initial response to the case:

After a few initial paragraphs of legal arguments, the government goes on to reveal its real face by saying in paragraph 9: "deletion of the said section can well open flood gates of delinquent behaviour and be misconstrued as providing unbridled licence for the same.”

In Paragraph 31 of the reply the Government goes on to state: “law does not run separately from society. It only reflects the perception of the society. Public tolerance of different activities, changes and legal categories get influenced by those changes. The public notably in the United Kingdom and the United States of America have shown tolerance of a new sexual behavior or sexual preference but it is not the universally accepted behavior.“

In paragraph 32 of the reply the government states: “In fact, the purpose of this section 377 IPC is to provide a healthy environment in the society by criminalizing unnatural sexual activities against the order of nature.” And then goes on to add in Paragraph 33: “If this provision is taken out of the statute book, a public display of such affection would, at the most, attract charges of indecent exposure which carry a lesser jail sentence than the existing imprisonment for life or imprisonment of 10 years and fine. While the Government cannot police morality, in a civil society criminal law has to express and reflect public morality and concerns about harm to the society at large. If this is not observed, whatever little respect of law is left would disappear, as law would have lost its legitimacy”.(link)

This reasoning is flawed in any number of ways, one of which being the reference to "new sexual behavior or sexual preference." The behavior is not "new," or it wouldn't have been outlawed in 1861; it is the recognition of it as a fundamental human right that is new. One could also argue that since the law isn't often enforced, it already doesn't have much legitimacy. And third, sexual acts between consenting adults in private pose no harm for anyone, whereas the existing law has been shown to cause harm to large numbers of people -- including many people who are not gay (i.e., the large number of heterosexuals with HIV/AIDS in India).

The old argument that the majority of Indians would probably support this law doesn't hold water either. The majority of Indians probably still support the practice of dowry, but no one would argue that that is a good reason to reinstitute it. Justices of the court, as non-elected officials, are in a unique position to do what is right rather than what is going to be popular.

Also, supporters of this law (along with supporters of the old anti-Sodomy laws in the U.S.) often claim that removing it would legalize pedophilia. That simply isn't true; existing laws would continue to protect children from sexual predators.

Importantly, it's not just lefties who are on board with this campaign; among the original signatories to Seth's letter is Soli Sorabjee, the former attorney general and a BJP official, according to the New York Times.

One final thought: before Americans liberals get on their (our) high horse about the barbaric nature of these laws, we should keep in mind that the Supreme Court's ruling in Lawrence v. Texas, which struck down the remaining anti-Sodomy laws in 12 American states, only came down in 2003. Then again, Section 377 applies to all Indian states equally. In my view, it is time to erase this relic of Victorian morality.