The Supreme Court (SC) verdict on Section 377 of the Indian Penal Code (IPC), a draconian, Victorian law which criminalizes same sex behavior first of all goes against India’s own Constitution. By re-criminalising LGBT persons, the judgment ignores the spirit of inclusiveness and abandons the principle of constitutional morality, basis upon which Delhi HC pronounced its historic judgement de-criminalizing gay sex. The judgment is nothing more than a manifestation of the wrapped minds, steeped in medievalism.
It has been put forward that LGBT community being such a “minuscule population” doesn’t require protection. Let’s put things in perspective. Section 377 criminalizes ‘carnal intercourse which goes against the order of nature’: peno-vaginal. A lot of straight people do get into sexual intercourse that goes against this so called ‘order of nature’. The same argument also goes against the foundations of the Indian Constitution. Majoritarian logic doesn’t matter. Every individual has the right to bodily integrity, right to live with dignity and equality.
The over-playing of the judgement in the media according to which Section 377 affects only LGBT population, is factually incorrect. It should be highlighted that a lot of straight people are equally criminalized too.
History of 377
The first records of sodomy as a crime at Common Law in England were chronicled in the Fleta (1290) and later in the Britton (1300). Both texts prescribed that sodomites should be burned alive. Such offences were dealt with by the ecclesiastical Courts.
The Buggery Act, 1553 formally an Act for the Punishment of the vice of Buggerie (25 Hen. 8 c. 6), was an act of the Parliament of England that was passed during the reign of Henry VIII. It was the country’s first civil sodomy law. The Act defined buggery as an unnatural sexual act against the will of God and man and prescribed capital punishment for commission of the offence.
In India, Section 377 of the Indian Penal Code, was passed by the Legislative Council and the Governor General assented to it on 6th of October, 1860 in the then British India.
Section 377, in the Chapter XVI (Offences Affecting the Human Body) stated in the title “Unnatural Offences”:
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 10 years, and shall also be liable to fine.
The legal battle against Section 377 started in the year 1994. In the year 2001, a petition by the Naz foundation was filed asking the Delhi High Court to read down Section 377 of the Indian Penal Code. The Delhi High Court delivered a historical judgement decriminalizing homosexuality in India on 2nd July, 2009. The Delhi HC judgement was historic, because it brought in the issue of constitutional morality. The Court said constitutional morality is what matters, not public morality. The judgment was a remarkable assertion that LGBT persons are indeed a part of the Indian society as well as a statement that the judiciary remains an institution committed to the protection of those who might be despised by a majoritarian logic.
However, the Supreme Court on 11th Dec, 2013 passed its judgement that the above paragraph is constitutionally untenable. It holds that Section 377 IPC is constitutional, and that homosexuality is a criminal offence in India. In doing so it overturns the historic Delhi High Court judgement. It feels like going to sleep in 2013 and waking up in 1860.
Struggle for LGBT Rights
Lastly, the struggle of LGBT persons cannot be seen in isolation. The way forward is to organize the struggle of the LGBT community along with other movements like land rights, ASFPA, against caste injustice, oppression of Adivasis; for self determination rights of people of Kashmir and North East India and the working class people who are criminalized by the state – like the heroic Maruti Suzuki workers. A prolonged struggle is what is needed.
Complete onus on the law is also problematic. If Section 377 is repealed, India doesn’t change overnight. There have been numerous laws against caste based atrocities, violence against women – however, in spite of these laws, atrocities continue to happen. What is needed is not just a mere change in the law, but an all out struggle against all forms of oppression i.e., capitalism.
The movement should draw its strength and inspiration from struggles of ordinary LGBT persons and other working class members who continue to face class, caste and gender based oppression on a daily basis. It is time to organize action against such a medieval mindset of the establishment, which wants to serve the interests of Saffron clad Babas and other religious bigots.
Only a united platform of resistance against article 377 is the way forward. Reclaim democracy now!
(The writer is LGBT activist and also a member of New Socialist Alternative CWI-India)