A perspective from India: Homosexuality stands criminalized because of a mid 19th century colonial law

This speech was given by Aditya Bondyopadhyay, legal consultant / Naz Foundation at the International Panel Discussion: Breaking the "cultural" straitjacket: why sexual orientation and gender identity are issues on the global south's agenda.

April 13, 2004
Palais des Nations
Geneva; Switzerland


Section 377 of the Indian Penal Code, was enacted by the British in 1860. It criminalizes what it calls, ‘sexual offences against the order of nature’. It does not in any place define what constitutes the order of nature, but the judicial pronouncements that have come over the past one and half century has extended the application of this section to all forms of sexual expressions that is possible between two male persons. Every time the law or the authorities have come across instances of lesbianism, there has been a thus far unsuccessful attempt to apply this law to them as well. Homosexuality in India stands criminalized because of a mid 19th century colonial law.

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.

Naz Foundation India Trust, a NGO, has brought an action in the Delhi High Court challenging the constitutionality of this law. The government dithered for two years before it filed its response. It did so only after immense pressure from civil society organizations and the passing of several strictures by the court. While its dithering is understandable as a tactic to loose another problematic litigation in the jungle of half a million or so cases clogging the Indian judiciary, the substance of its reply brings to light the culture straitjacket, which is the subject of today’s discussion. Allow me to quote from the reply:

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. “

Thereafter it goes on to mention in the same paragraph that the 42nd and the 156th reports of the Indian Law Commission states that society does not approve of homosexuality and that therefore there is a justification in retaining the section 377 IPC in the books of statutes, while conveniently ignoring to mention that the same law commission in a later report namely the 172nd report of the Commission has actually recommended that the rape laws be changed to [a] make it gender neutral; [b] make special provisions for child sexual abuse; and [c] repeal section 377 of the IPC.

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”.

To paraphrase, three things can be said about the government’s stance:

[a] the state has not just a function to, but actually a duty to stop ‘unnatural sex’, or else the social order would break down, law loose its legitimacy et al;

[b] that our society does not tolerate homosexuality, and notwithstanding the universality of human rights or the universal applicability of our fundamental rights and freedoms, its criminalization is therefore justified; and

[c] that it is really not our thing, its something that happens out there in the west, we do not have to copy that. In other words the three pillars of the classic culture arguments to criminalize the likes of us.

So why is that problematic? Of course we know that the Government does not have any locus standi to interfere in the private sexual activity of two consenting adults, regardless of its interpretation of what is natural or unnatural sexual behavior. Its problematic because the repeated insistence of the culture argument has the risk of putting in jeopardy the gains that the women’s rights movement, or the movement for the upliftment of the dalits and other oppressed castes, the civil rights movement, the social gains that has been made over years of struggle in the seeking of a multicultural tolerant society, the gains in the stride for secularism etc. All of these movements have been conducted in opposition to some or the other prevailing majoritarian belief system and we stand to loose all of those gains. And it is a price that I personally do not think is worth paying.

It also stands the risk of actually pushing the Indian polity and the Indian society into a increasingly fascist mode, where there is only one belief that is accepted and culturally acceptable, therefore legally sanctioned, and anything that goes against it has to be suppressed, criminalized, and obliterated. All justified in the name of culture. It would ring in the breakdown of our cherished pluralistic and tolerant society.

The universality of Human rights demands that prevailing and dominant cultural and social norms cannot be invoked in a manner as to circumvent or restrain fundamental and constitutional rights. If we were to accept the government's arguments, then many of the progressive legislations in my country would never have been enacted. For example, even today there are many men who think that tradition gives them a right to beat up their wives, or that they deserve to get a very fat dowry just because they were born with a penis. If we give in to these cultural beliefs, then there is nothing to turn round the legislations that we have made to stop violence against women or dowry and dowry related deaths.

All of this is besides the point that the fascist nature of the governments stand necessitates a tunnel vision, flawed, and false reading of what is really Indian Culture and Indian Social acceptance. Indian history is replete with examples of the accepted existence of homosexuality, and now there are quiet a few tomes that have been meticulously researched and published on this issue. As opposed to what the government says about homosexuality and Indian culture, actually our
history and patterns of cultural evolution is replete with examples of tolerant and liberal acceptance of diverse sexualities and its expressions.

And that history is finding adequate reflections in contemporary social and anthropological studies. It is not just a past reality; it is today’s reality as well. A recent study of sexual practices in rural India by the United Nations Population Fund (UNFPA) found that `male-to-male sex is not uncommon ... In fact a higher percentage of men in the study reported having male-to-male sex than sex with sex workers. This was true of both
married as well as unmarried men. Close to 10 per cent unmarried men and 3 per cent married men reported having had sexual intercourse with other men in the past 12 months." The survey covered 50 villages in five districts of five states with feedback on sexual practices from close to 3,000 respondents and in- depth interviews on intimate habits from 250 people. The data is indicative of a reality the government is either unable or unwilling to see.

So is homosexuality an import from the west? Well the only thing that was imported was section 377 of IPC, which was brought in and gifted to us by the British. The British must have found homosexuality prevalent enough and with enough freedom and social sanction to have their Victorian morals shaken, and would therefore have wanted to put a stop to such ‘vile native’ practices by legislating appropriate laws. It is not homosexuality that is a western import, it is criminalization.

My reading is that when the government says that it needs to retain section 377 because it is also used against cases of child abuse and is therefore necessary, it only shows how bankruptcy they are. In spite of repeated struggles and demands by women's organizations and child rights organization, not to speak of LGBT organizations that are increasingly raising the same demand, India remains one of the few countries that does
not have a comprehensive law against child sexual abuse till date, or a law against male rape. One fails to understand what prevents the Government from enacting such a law, when it has internationally made the commitment to enact such legislation long ago.

I end with a quote carried in an article printed in the Asian Age Dated 3 October 2003: “There are several sections in the Indian Penal Code which are anachronistic in a changed world. Section 377 is a prime example. As a matter of fact, Section 377 as it stands, would have made what Clinton did to Monica Lewinsky or rather what Monica Lewinsky provided to Clinton, an offence. I am being discreet, because after all, some things can only be dealt with orally and cannot be put down on paper! The crucial words are "against the order of nature." The possibilities are immense and the imagination can well run riot. Perhaps the way out is now to argue that nature and its various orders have themselves changed.”

Thank You