Section 377 – Indian Penal Code

India for LGBTQ Rights

A day after UN Human Rights day, the Supreme Court of India upheld the constitutional validity of Section 377 of the Indian Penal Code. This section criminalizes ‘carnal intercourse against the order of nature’ – this includes anal and oral sex (consensual) and attracts a maximum sentence of life imprisonment.

For those of you who are wondering what on Earth is happening in India, Section 377 was written in 1861, introduced by the Victorian British Colonists. The land of open sexual expression and the Kama Sutra, has since embraced this section as it upholds our “culture”. In 2009, the Delhi High Court, decriminalized homosexuality in what we all hailed as a historic and milestone achievement in Human Rights saying that the section needs to be amended as its essence goes against the fundamental rights of human citizens.

Two steps forward. One giant step back.

India – a country that rushes to proclaim it’s freedom from colonial oppression but still clings on to regressive Victorian laws. Don’t forget that by this law, oral sex is also a crime and therefore, as of yesterday, we are a nation of criminals and the only few outstanding human beings are sitting in the Parliament and in the Supreme Court. Bravo India!

I was first kissed by a girl in the 7th grade. I felt guilty for ages because my Indian and Catholic upbringing taught me that it was a ‘sin’. I cried myself to sleep every night for a month, KNOWING that I would go to hell. The girl in question was from a recently broken home and she came from an abusive past. We were good friends and in retrospect I saw that it was an act of love and affection. We were taught that we had to stay away from people whose parents were divorced, who were adopted, who were “different” to what was their idea of wrong and so I distanced myself from her for a while. I kicked myself for it for a long time after and then stopped being so hard on myself because I was only 12. I vowed to always strive to unlearn what is taught to me and to always use my head and my heart, rather than popular belief.

When I was in 9th grade, an English Teacher called my parents and told them that I have “lesbian tendencies” because I tended to play basketball, hang out with boys and always be there for the girls who didn’t come from their idea of an ideal background. I raged. My dad smiled at the teacher and nodded. I thought I was in trouble for sure. When we left the classroom, my dad patted me on the back, bought me my favourite ice-cream and said “I’m proud of you”

In the 10th grade, I saw a female couple holding hands and gazing into each other eyes. I said to myself then that I wanted to know a love like that – that tender, that obvious, that all consuming. I later found out that they were caught, their parents called in and they were forbidden to ever see each other again. 

In University, I met my first openly gay man. He was only a boy but out and proud. Everyone teased him. His name became a metaphor for when someone was emotional or being effeminate. It can’t have been easy, not in any country. Especially not in India. But he never pretended to be who he wasn’t.

When I first started working, I met someone who went on to become my closest friends. People assumed we were dating. Other people assumed I was lesbian.  I could deal with the gossip, it doesn’t directly affect me when people make narrow minded comments. I refused to use the popular “This is <insert name here>, my gay best friend”.I wasn’t about to start doing that unless there was a mass revolution to mention sexuality before relationship.

“Hey, this is <insert name here>, my heterosexual friend with a foot fetish.

I am incensed that the best friend who cherishes me, treats me with respect, is there for me, who supports his family even though they ostracised him, the one who is hard working, who has time for you even with his plate being overfull is a criminal. And that man who rubbed against me in a crowded bus is “normal”

Homophobia is not something you are born with. Neither is racism or sexism. It says so much about your society when it teaches you hatred over love, discrimination over inclusion. Love is love is love.

Shame on you India.

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36 thoughts on “Section 377 – Indian Penal Code

  1. Here is Australia our High Court just struck down the same sex marriage laws introduced in The Australian Capital Territory. Seems like both former colonies have a number of British hang-ups to get over.

    We too have much to be ashamed of.

    Regards
    Sir

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  2. A very thought provoking post indeed!
    What has happened is that some time back Delhi High court ruled that section 377 is against the spirit of the Indian constitution and decriminalized Gay sex. SC yesterday has ruled that there is nothing in section 377 that is against the spirit of the constitution and again banned gay sex. At the same time it has requested the legislation to amend or delete section 377 altogether, The decision is logical in itself. But unfortunately it is insensitive too. But this is the same insensitivity towards which is all pervasive not only in India but in so many developed nations. I think there are two points worth considering.
    1) It is very difficult to empathize with some one whom we have judged negatively on religious or moral grounds.
    2) Our views as an individual vary with our views as an office bearer.. Once we don the responsibility to set “right” precedents for the society, we don’t mind being labeled insensitive.
    And I think situation is unlikely to change in the near future.

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    1. Rupesh, that is the depressing bit. How many years will this drag on? I can appreciate the logic behind the SC’s judgement yesterday. The parliament needs to strike that section off or amend it in a way that protects everyone’s rights. The section denies you the right to “unnatural” sex even if it is consensual. The problem also is that so many who have come out since then are at risk of being reported/jailed/harassed by someone who is simply being vindictive or has taken upon themselves to be a moral compass. “Hey, I don’t like you. Off with your head” – not the way law or justice should work.

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      1. True…But I sometimes doubt that this issue is used by the people in power only as an issue to divert attention of the masses and media. For them homosexuals are not illegal entities…for them homosexuals are non entities.

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  3. Honest and well written. Unfortunately it is true what you say in one sentence ,” Two steps forward. One giant step back”.
    I will say what my grandfather once told me :
    ” People are born free. It is an undeniable right . It is also your own right to choose your partner .Whatever happens in “Bed” is O.K as long as no children are abused and is your free choice.”

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  4. The thing that I find the most astounding about this is that as its covered by your Penal Code one has to assume there is a victim. As is often the way in cases such as this I struggle to find anyone who has been hurt in any meaningful way (either physically or emotionally.)

    When you hear people rant and rave against this supposedly immoral act I am usually lead to think that they believe the practice may become compulsory. Why else would they be so upset by something that clearly has little or no impact on them and their way of life.

    Regards
    Sir

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    1. I suppose it does derive from religion that when you see a crime being committed or a ‘sin’, it is your moral right to “educate” those poor, poor misinformed people. You’re absolutely right – valid points and so well made. Logically, upholding an act like that has little or no impact to the quality of life.

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  5. I was utterly shocked when i read it this morning 😦 So sad 😦 When will India ever broaden it view and support fundamental human rights??
    This is simply outrageous and unacceptable!

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    1. Absolutely. But there is a larger change that needs to happen at the level of the mindset of the people as well. Yes, so the section is amended and then what? Can same sex couples be open in public, can they marry? Will they ever stop being judged? It is dreadful.

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  6. Very interesting post. So are you allowed to kiss in India? Kissing after all, is also oral sex is it not…isn’t that how it all starts kissing one part of the body and working towards other parts. Where do they draw the line from it being kissing to oral sex if not? Just wondered…

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    1. Kev, we’re not allowed to publicly kiss in case we offend someone. Sometimes we have to hide our realtionships from the “elders” for fear that someone would turn tattle tale and tell them that they saw us holding hands or even hugging. In some cities, it’s better, more cosmopolitan. But largely, no. Everything sexual, is a sin. Which is a pity because this is not an Indian value. It’s something we got from the Victorian English.

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      1. Damn! I really feel for you all. It’s a shame they could not have developed along with us. It’s kinda like some places in the middle east that still want to stone people for adultery. Unbelievable! Such a shame that countries can’t progress at the same rate.

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  7. You are talking about the judgement…But, I think there is nothing wrong in the judgement per se…
    Let me narrate an incident which occurred in my office today evening…A colleague asked, jokingly, what were the repercussions of the judgement? I, usually, avoid discussing personal beliefs in office. But, still, I asked..you mean, what’s my opinion? He said: yes. I paused a while and said…I think it’s nobody’s business to decide whom I love. My colleague looked at me in disbelief for while, but, knowing my sharp tongue, did not dare say anything…..Changing laws is the easy part( an important part nonetheless), changing mindsets is a different ball game all together. Sad day indeed.

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    1. No, you’re right. The judgement was logical – in that, it is the parliament that has true power to change/amend this section. But the way it delivered it was insensitive and showed a high level of bigotry. I know what you mean, because the Victorian English gave us their laws and left. But we are still colonized in the mind. The number of “Homosexuality is a sin. Kudos to the SC” posts on facebook really agitated me. The number of people who refused to get on the “gay for a day” campaign because “what will people think” goes to show that. Depressing.

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      1. I agree…Its important how you word the judgement..and in this case it was…so insensitive. I watch this and am reminded of the movie “Milk”. In response to a fear that homosexual teachers might be a bad influence on children Harvey says,”If it were true that children emulate their teachers, we’d have a lot more nuns running around.”

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  8. The poet, A E Housman who was, himself gay wrote movingly about the imprisonment of Oscar Wilde in Reading Jail. In the poem “the colour of his hair” refers to Wilde’s homosexuality. In the same manner that a person is not responsible for the colour of their hair (it is natural), likewise men/women are not responsible for their sexuality which is, also natural, therefore it is cruel to punish them for being gay.
    “Oh who is that young sinner with the handcuffs on his wrists?
    And what has he been after that they groan and shake their fists?
    And wherefore is he wearing such a conscience-stricken air?
    Oh they’re taking him to prison for the colour of his hair.

    ‘Tis a shame to human nature, such a head of hair as his;
    In the good old time ’twas hanging for the colour that it is;
    Though hanging isn’t bad enough and flaying would be fair
    For the nameless and abominable colour of his hair.

    Oh a deal of pains he’s taken and a pretty price he’s paid
    To hide his poll or dye it of a mentionable shade;
    But they’ve pulled the beggar’s hat off for the world to see and stare,
    And they’re haling him to justice for the colour of his hair.

    Now ’tis oakum for his fingers and the treadmill for his feet
    And the quarry-gang on Portland in the cold and in the heat,
    And between his spells of labour in the time he has to spare
    He can curse the God that made him for the colour of his hair.”

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  9. This is such a set back though it will be interesting to see what India makes of this mess in the coming months and years. This makes me sad and ultimately leaves me speechless. Australia took away the right for homosexuals to get married in Canberra, I think even on the same day as this happened in India. Together with what is going on in Russia, I can’t fathom it really. Such a load of bullshit.

    Your dad seems awesome!

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  10. Isn’t it amazing that we humans so often use our laws to promote hate, prejudice, fear and separatism instead of community, kindness, hope and love! May we grow wiser.

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  11. Good on you for speaking out! Good on your father for being proud of his daughter for being a healthy normal child! This penal code…um, how would anyone know since it is private? Wow!! I think of Kama Sutra and I think they know their stuff…then you talk about these laws and gee, it is all so so contradictory. My parents divorced in 1967 and many youths were not allowed to play with us. But pooh on them for it is our Catholic parish priest who told my mother to leave my father. ahahahaha

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    1. I’m from a catholic family as well and went to a catholic school and it really annoys me when their book says “love everyone” and then has rules about how you shouldn’t be friends with those from broken homes or those who are protestants. Rubbish. According to that Victorian Code (which angers me even more because it’s not even Indian – you should look up a temple called KhajuRaho that is a temple with sex sculptures) anyone can complain, even out of malice, that someone is gay or indulging in ‘unnatural’ sex. Horrible really!

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      1. Wow, I have a friend who moved from Toronto to India and finally found the love of his live…another wonderful man. How odd eh? He is so happy there. So there must be more open cities right? Let me check where he is.I think it is Bangalore.

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        1. Bangalore is an open city. That’s where I’m from but there’s no bias when I say it. It’s safe for women and we have a thriving LGBTQ community. And no one’s going to knock down doors and arrest anyone but there’s still the fear that it will trickle down. The only bad annoyance is when people ask me if I’m lesbian because I support homosexual rights. Yes, because being an environmentalist makes me a tree. 😉

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