Section 377 Quotes

Section 377 of the Indian Penal Code and the Criminal Tribes Act of 1871 target the transgender community as well as the homosexual community. They violate the Indian ethos and the traditions of perhaps at least 2,000 years of Indian cultural practice, mythology, history, the Puranas, and Indian ways of living.

It is a relic of colonialism. In many commonwealth countries, former colonies, and English protectorates, state homophobia was left over from the British Empire: Section 377 was a part of the penal code that England imposed on its colonies in 1860. It was a sort of umbrella crime covering everything, especially homosexuality and bestiality; it took into account neither the consent nor the age of the partners, which made it impossible to legitimately distinguish homosexuality, rape, and pedophilia. The British crudely implemented this provision first in India, where the Indian Penal Code would become the colonial matrix, and then, based on Indian law, throughout the British Empire in Asia, Australia, and Africa as the colonizers advanced. Today one can still find that famous Section 377 almost intact in ten Asian countries and fifteen Anglophone African countries.

Section 377 made any sex apart from penile-vaginal intercourse between a man and a woman—any sex the authorities in power decide is ‘against the order of nature’—to be illegal. The Supreme Court ruling made it clear that the personal sexual preferences of adults was indeed as nature made them, and that it was lawful for them to be themselves. Obviously this was great news for the LGBTQ community, whose idea of what is ‘natural’ reflects their sexual orientation. But it also impacted married heterosexual couples since, theoretically, an act of oral sex between a husband and a wife is also illegal. And if you were not married to each other, of course, it was worse. If Bill Clinton had been an Indian, he might have survived impeachment after the Monica Lewinsky affair, but he’d have ended up in jail under Section 377.

When healthy sexuality is difficult to achieve for heterosexual women and men, the dilemmas of a young person navigating a  different  sexual  orientation  that  is legally a criminal act are difficult to imagine. India’s attitude towards homosexuality is gradually moving towards acceptance. This is despite the flip-flop of the courts in removing section 377 of the Indian Penal Code written by the British Raj over a century and a half ago. This act criminalizes ‘carnal activities against the order of nature’, a reflection of British sexual fears rather than Indian culture which at that time had a much more relaxed acceptance of the human body, fluidity of gender and sexuality in its many forms. Section 377 legalizes fear of homosexuals.

The BJP, in its affidavit before the Supreme Court said: In the event this honourable Court is pleased to declare Section 377 viz. ‘consensual acts of adults in private’, to be unconstitutional, no other issue/issues and/or rights are referred for consideration and adjudication and therefore, may not be gone into. 54 All these facts surrounding the repeal of Section 377 of the Indian Penal Code, of course, did not prevent the popular show Made In Heaven from painting Right-wing forces as the villains who were against homosexuality and LGBTQ rights. 55 It should be remembered that the RSS or its allied organisations do not wield any theology-based influence on what Hindus should think about homosexuality or other issues, whereas the Christian and Muslim organisations that supported keeping Section 377 and opposed the Court’s decision have substantial sway over what their adherents should see as right or wrong. This is a structural difference between the decentralised, polytheistic Hindu way and the Abrahamic, monotheistic faiths.

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