What is section 377?

Not for nothing, the great German thinker, Johann Wolfgang von Goethe, had said, “I am what I am, so take me as I am” and similarly, Arthur Schopenhauer had pronounced, “No one can escape from their individuality”. Denial of self-expression is inviting death. I believe that LGBT community in India denied its self-expression for decades and even now when the supreme court of India has legalized homosexuality, the social acceptance is far from reach due to lack of information to the masses and conservative society. The LGBT community is still living in the bondage of dogmatic social norms, prejudiced notions, rigid stereotypes, parochial mindset and bigoted perceptions. The natural identity of an individual should be treated to be absolutely essential to their being. What nature gives is natural. That is called nature within.

The section 377 of the Indian Penal Court (IPC), which the Supreme Court of India overturned in September 2018, criminalized homosexuality and made it a punishable offence. The Chief justice of India, Dipak Misra said Section 377 of the Indian constitution, which outlaws “carnal intercourse against the order of nature” and had been used as a legal pretext for the oppression of the country’s LGBT+ community, was “irrational and indefensible”.

Section 377 dates back to 1861 and the era of British colonial rule and has long been interpreted as referring to homosexuality, although its vague wording does not state that explicitly. The law was a descendant of Tudor England’s Buggery Act 1533, introduced under Henry VIII. The dominance of conservative attitudes is the legacy of the Victorian morality imported and imposed on the Indian people by their imperial rulers. A supposedly alien law Section 377 has managed to survive for over 158 years, impervious to both the anti-colonial struggle as well as the formation of a democratic India, which guarantees fundamental rights to all its citizens.

The country previously came close to altering the law in 2009 when the Delhi High Court found it unconstitutional and in breach of citizens’ basic rights, but the decision was then overturned by a small panel of Supreme Court judges in 2013 on the basis that repealing it was a matter for parliament.

On 11 July 2018, the Indian government told the Supreme Court the decision was down to them and would not be contested, a statement made to avoid a repeat of the 2013 impasse and one that risked upsetting conservative Hindus among Narendra Modi’s ruling Bharatiya Janta Party, who place a premium on traditional values.

Lawyers arguing for the repeal of Section 377 before the Supreme Court successfully made the case that sexuality is innate and not a matter of choice and pointed to examples from antiquity, Indian mythology being rife with erotic images of same-sex relations and tales of gods changing their gender. The Kama Sutra dedicates an entire chapter to the subject.

The decision follows a protracted struggle by activists and members of the community against the repressive law, introduced in 1861 when India was under British rule. It threatened imprisonment, even a lifetime sentence, and a fine for those who engaged in what it labeled as “unnatural offences” or intercourse “against the order of nature.”