Against Section 377 of the Indian Penal Code

(first published in the Indian Express in January 2000 and reprinted in ‘Lurkings’, published by the Nishit Saran Foundation)

Nishit Saran

January 26, 2000


“Of course it is completely fine if you are gay. What you do in your bedroom is none of my business…but why do you need to talk about your sexuality? Why do you need to make a public issue of such a private matter?”

Not a day passes without someone or the other asking me this question, and it angers me to no end. However innocent it might be on the surface, there lurks behind it a most disturbing sort of ignorance about the living reality of gay persons. Which is all the more disturbing when the question comes from educated people who claim, with great sophistication, that they are ‘cool’ with my being gay. What I do in my bedroom has to be your business, my sophisticated friends. For you have made my sexuality a public matter even before I was born.

Have you heard about Section 377 of the Indian Penal Code?

Section 377 is our ridiculously archaic law against ‘unnatural’ offences. It states: ‘Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life…’

Section 377 officially sanctions the public disgust and hatred of homosexuals in this country. It makes me, in the eyes of the law, a criminal subject to imprisonment for life. It allows my employer to fire me without a show cause notice, simply because I am gay. It gives me landlord the full legal right to throw me out of my apartment if he doesn’t like me, using my sexuality as a perfectly valid excuse. It effects a whole gamut of civil and criminal laws that deny gay persons the rights that heterosexuals take for granted every day. And you say that my sexuality is a private matter!

Section 377 might be yet another anachronism in the Indian legal system. But, unlike other archaic laws, this particular Section continues to have a devastating effect on the daily lives of an estimated fifty million Indian citizens. It stands in sharp variance with international law and with covenants to which India is a signatory (such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights). More crucially, it is likely unconstitutional. Section 377 violates Article 14 and 15 of our Constitution since it arbitrarily and oppressively discriminates against persons on the basis of their sexual identity. It also violates the right to life and liberty under Article 21, which has come to include the right to privacy.

Section 377 was a gift from our wonderful colonial masters who, it must be noted, repealed the law themselves in 1967. In 1860, as part of the colonising effort, the British introduced a standard Indian Penal Code which replaced, among other things, a rather tolerant Indian attitude towards sexuality with a highly moralistic and hostile Judaeo-Christian one.

One need only look at the homo-erotic content of Khajuraho temples and Urdu poetry – or of the Kama Sutra chapter on oral sex for that matter – to note the special and almost mystical status that sexuality has in our civilisation. Even when the Manu Smriti comments against homosexuality, it makes it a matter of private penance and not of public discourse. It is indeed a perverse irony of the post-colonial moment that those who now attack sexuality in the name of nationalism or religion are, in actuality, themselves defending foreign and imperialistic attitudes.

No surprise, then, that the concept of ‘unnatural’ offences is an obsolete, Victorian one – suspicious at best of sexuality and no longer in any accordance with living realities. Look at the law again: the ‘order of nature’ in the statute refers, of course, to sexual acts that are intended for procreation. The idea that sex is only meant for making babies is ridiculously outdated, as even the Gujarat High Court ruled in 1968, but the law remains unchanged. So watch out if you are having sex without intending to produce children, or if you are having oral sex…You might end up spending the rest of your life in prison!

Section 377, by the way, makes the entire government effort of Family Planning illegal, since this encourages acts against the order of nature as well! Should we now ban the use of condoms and outlaw the Ministry of Health and Family Welfare?

Section 377 does not differentiate between consensual and non-consensual acts. It also does not differentiate between adults and minors. It therefore puts homosexuality on the same criminal footing as, say, child molestation. Is there no difference between the violent rape of a seven-year-old child and the loving and completely voluntary decision of two adults to sleep with each other?

It is time that we scrap or amend this ridiculous law, and efforts are being made in this direction by advocacy groups all over the country. But not much will change without a prior change in public opinion. Most people do not even know that this law exists, and when told about it, heterosexuals and homosexuals alike are outraged at its stupidity. And one could just let it be…if the law was not enforced in the particular way it is. Many studies have shown that Section 377 is used most often for blackmail and extortion, but more importantly, the law is preventing crucial work in HIV prevention, in a country with the largest number of HIV-infected people in the world. Let us start talking about 377 now, and let us scrap it before it is too late.

After all, we are not talking only about a ridiculous law on paper. We are also talking about the lives of millions of real people and their collective fear and pain, which has been made silent and invisible in the face of the Indian legal system.

So no longer complain when I talk about my sexuality, my sophisticated friends. At least until we get rid of Section 377 of the Indian Penal Code. Till then, my bedroom habits will continue to be your business…whether you think this is ‘cool’ or not.