India’s awakening: The end of Article 377 and the last shred of colonialism

Published: July 13, 2018
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An Indian supporter of the lesbian, gay, bisexual, transgender (LGBT) community takes part in a pride parade in in Chennai on June 24, 2018. PHOTO: AFP

One of the most glaring anomalies in the Indian legal landscape is Article 377, the 1861 law that criminalises gay sex. This law, inspired by Victorian era prudishness, should have no place in the India of 2018.

The British, who created this law based on their values of that time, have now adopted much more liberal and progressive outlooks. Meanwhile, the Indian state has refused to move on. In fact, it has appropriated those archaic values and keeps them entrenched and alive in the country’s legal code.

This is ironic, and perhaps tragic, because through the course of history, the Indic civilisation has been very permissive and open to exploring all facets of sexuality. The Kamasutra and references to characters like Shikhandi and Chitrangada in the Mahabharata are just some examples of the acceptance and acknowledgement of what might be considered “alternate lifestyles” today.

Over the last few centuries, Indian society has taken a more conservative turn, perhaps influenced by the values of foreign rulers who followed monotheistic and strictly codified faiths that abhorred sexual expression. Therefore in large parts of the country, homosexuality, and in fact any kind of free sexual expression, are frowned upon and viewed as perversion.

Article 377 serves to reinforce this social bias. Not only does it criminalise homosexuality, it also closes any avenues a lesbian, gay, bisexual and transgender (LGBT) person might have to seek protection against any discrimination or violence. It also gives antagonists the license to threaten and browbeat the LGBT community.

The Indian government refuses to criminalise marital rape. Men accused of unwanted sexual advances and rape, often escape censure or punishment. However, two adults, in a loving and consensual relationship can be severely punished, just because of their sexual orientation. This has to change.

Fortunately, there has been a concerted effort to rectify this legal anomaly that’s been going on for several years. The movement has managed to chip away at Article 377 and in 2009, the Delhi High Court had even struck it down. Unfortunately in 2013, the Supreme Court reversed that decision. The petitions against that ruling are now being heard and there is optimism that this anachronistic law will finally be consigned to the dustbin of history.

This will be a huge step for a country that prides itself as being a liberal democracy that does not discriminate on the basis of religion, race or gender. Just like the aforementioned characteristics, sexual orientation should not be grounds for discrimination either.

Several social movements have evolved as part of a three-stage process. In the first stage, a core group of activists raise awareness. That core group spreads its message and acquires critical mass, though not necessarily a majority across the general population, giving the movement a voice that government hears. Legal reform then follows in the second stage. The third stage happens once the laws change. Gradually, large sections of society adopt the reformed values. We’ve seen that with the civil rights movement in the US, universal adult suffrage, and many more.

The LGBT community contributes richly to India – socially, culturally and economically, and deserves the space to live with dignity. A change in the arcane laws around their lifestyle would also set the tone for greater social change.

Youngsters belonging to this community grapple with inner conflict over their sexual orientation. The fear and shame of the attached social stigma and criminality exacerbate this conflict. A change in the laws would also provide an enabling environment that can help them understand themselves better and not feel like a deviant or a criminal.

If decriminalisation does take place, the LGBT youth will be able to come out more freely and just be themselves, rather than trying to hide their sexual orientation. Imagine the burden of going about your daily life while trying to hide a fundamental part of who you are. The fear of being bullied by classmates, the fear of being ridiculed by the neighbours, the fear of being harassed by the cops, and the fear of prosecution can be a huge drag on a young individual’s aspirations and zest for life. It’s just not fair. A change in the law can unburden an entire community and enable it to flourish and make an even larger contribution to the country.

Indian society needs greater tolerance and sensitivity towards people who are not part of the mainstream. The end of Article 377 will be a monumental event in building an India that does not fear and demonise sexuality. In fact, it will move closer to its rich civilisational heritage of openness, inclusion and celebrating healthy sexuality. It will also strip away one more vestige of undesirable colonial imposition.

Amit Nangia

Amit Nangia

The author is a learning and development professional with a background in finance and human resources that informs his commentaries on geopolitical and socioeconomic trends. He tweets as @amitnangia06 (twitter.com/amitnangia06)

The views expressed by the writer and the reader comments do not necessarily reflect the views and policies of The Express Tribune.

  • Sunil Aryan

    Indias biggest problem is Article 370 not 377.Recommend

  • http://peddarowdy.wordpress.com/ Anoop

    Not one word about thanking BJP Govt for telling the court it will abide by its decision and did not challenge the notion which is against criminalizing gay sex.

    https://www.livemint.com/Politics/fMReaXRcldOWyY20ELJ0GK/Centre-leaves-it-to-Supreme-Court-to-decide-on-Section-377.html

    Congress didn’t do as much for the fear of Mullahs and Christian priests. No word about this also.

    Not giving credit where it is due is the worst form of intellectual dishonesty.

    I have to say, there is a growing trend in media. Its visible in this article. Biased writing.

    Modi has shown how liberal and progressive his Government is. Hinduism is progressing along with India.

    Good times ahead.Recommend

  • Stupid Intelligent

    No body knows if Pakistan even has laws that prohibit gay relationships; however, the SC has recently made great effort in the transgender rights issues. Perhaps they can go ahead and look into gay matters as well.Recommend

  • namwhambam

    Hi Amit! It is Section 377 of the Indian Penal Code and not Article 377. Article as a term is only used for the Constitution of India. Section 377 of the IPC criminalises unnatural sex.Recommend

  • http://thoughtsandotherthing.blogspot.fr/2015/09/hyderabad-as-i-know-and-feel.html Supriya Arcot

    Gentle correction – its not Shikandi and Chitrangada , its Shikhandi and Brihannala .Recommend

  • Headstrong

    Not everything has to be political. Conservatism has deep roots, not least in the BJP. Previous governments were no less. While the present government’s stand is good, it would have been even better if they had supported scrapping of 377.
    Hopefully Supreme Court will take the right decisionRecommend

  • amitnangia

    Thanks, noted.Recommend

  • amitnangia

    Thanks for pointing that out.Recommend

  • Sane

    India biggest problem is religious discrimination and murdering Muslims for petty reasons, even sometime reason is ‘just to kill a Muslim’. Secondly rapes of women. India has become absolutely unsafe country for Muslims and all women. Truly now it is known as COUNTRY OF RAPISTS.Recommend

  • http://peddarowdy.wordpress.com/ Anoop

    The question of LGBTQ is nothing but political. It is political all over the world!

    BJP have let go of the opportunity to even argue against 377. That looks like support to me.

    I can’t wait for the 377 to go.Recommend

  • Headstrong

    When I said political, I didn’t say it in the context of LGBTQ, but in your bringing in BJP and Congress into it.
    This is more a social issue – and Yes, I agree that 377 should go. The earlier, the betterRecommend

  • Sunil Aryan

    Pakistan also should follow suitRecommend