Re-enter a Colonial Spectre, Clanking Chains: The Return of Sec. 377 in India

By Raj Ayyar—LGBT Cultural Correspondent

images 30Most of us thought that Section 377 of the old colonial Indian Penal Code (the ‘sodomy’ laws in India), an ugly vestige of Victorian British colonial law, was successfully exorcized by the Delhi High Court verdict of 2009.

Alas, not so. In an infamous ruling on Dec. 11, 2013, the Indian Supreme Court overturned the Delhi High Court’s progressive verdict, thus re-criminalizing same sex relations.

This infamous piece of colonial legislation (Sec. 377), criminalized same sex relations in the Indian subcontinent, often forcing those with LGBT ‘tendencies’ to the unacknowledged margins of Indian culture/(s). Many were and are forced into loveless ‘arranged’ heterosexual marriages, orchestrated by parents and other elders.

Versions and variants of Section 377 exist in most ex-colonies of the British Empire—in South and South East Asia, the former Brit. colonial African countries, and elsewhere.

To judge by the provisions of this law, only hetero intercourse, and that too in the missionary position, falls within the normative discourse of the ‘Order of Nature’. In fact, some heterosexual spouses have invoked Sec. 377 (the prohibition of ‘carnal intercourse against the so-called order of Nature’), as grounds for divorce, claiming that their marriage partners preferred ex. oral or anal sex (sic!).4gnl

The vast majority of the victims of the law are LGBT people. While it is true that the number of convictions since the   late 19th century has been low in India, the law has been used by police, family, and others, to browbeat, harass, intimidate and blackmail LGBT folks caught in the act, often driving them to suicide.

The irony is that that the UK (which invented the sodomy law in most of its colonies), abolished them at home in the 1960’s. Recently, LGBT marriage became legal in the UK as well!

The ex-colonies often cling to the shop worn, retro-colonial Victorian discourse of ‘sodomy’, ‘the Order of Nature’, ‘normalcy’, claiming such signifiers as part of their own tradition. Thus, the sectarian BJP (currently in the opposition), firmly supports the Supreme Court verdict, and staunchly clings to Sec. 377, as the epitome of ‘traditional’ Hindu and ‘Indian’ family values!

The Delhi High Court verdict of 2009 cleared away the musty, moth-eaten aura surrounding good ol’ 377. In a landmark judgment, the justices of the Delhi High Court Indian SC decision break outread down Sec. 377, effectively decriminalizing homosexuality, and consensual same sex relations in Delhi, and also by analogy and precedent in the rest of India.

The judgment quoted Jawaharlal Nehru, India’s first Prime Minister, and underscored all the inclusiveness, equality and freedom of expression clauses in the Indian Constitution.

The LGBT communities in India began to breathe more freely. In the period between ’09 and ’13, Many Indian cities witnessed a blossoming of LGBT pride parades (dating back to 1999 in India, with Kolkata kicking off the first of its kind), support groups, bars and parties, hangouts for the communities, outreach to LGBT people in rural areas, and to LGBT teens. Many young Indians came out of the closet as never before, often supported by progressive multinationals like HP, that has very pro-LGBT policies.

Now returns the colonial specter, the specter of 377. On Dec. 11, 2013, the day after Human Rights Day (coincidence?), a two judge bench of the Indian Supreme Court decided to overturn the Delhi High Court verdict of 2009.

Why? The Delhi High Court decision was appealed by a variegated assortment of right wing religious nuts—Hindu, Christian, Muslim and others, challenging the Delhi HC verdict of ’09. My friend, the late Jack Nichols would call them the ‘Religious Reich’.

The Indian Supreme Court, known on occasion for its broad, inclusive constitutional approach, struck down the Delhi HC verdict with surprising vehemence.


In its notorious judgment, the Indian SC found nothing unconstitutional about Sec. 377, Further, the good little justices dismissed the LGBT community in India, as a miniscule minority, and challenged the Naz Foundation (which lodged the original case in the Delhi HC), to show cause that Indian LGBT citizens were indeed victimized and discriminated against.

Finally (to add insult to injury), the SC having waited 4 years to deliver its august verdict, threw the ball back in the lap of the legislature. Let Parliament decide, they said. What a cruel joke, given the current pre-election chaos of the Indian polity.

Sometimes, the Western media (including the sympathetic LGBT media), tend to indulge in a baseless orgy of self-congratulation. ‘After all’, many seem to say, ‘we are so liberated. Poor, poor little India—tsk, tsk.’

Aside from the neo-colonial patronage of such postures and positions, there is no cause for premature closure of the LGBT cause in India.

The BJP in the political opposition, declares its adamant opposition to LGBT rights, fondly claiming an obsolete colonial penal statute as the heart of Indian tradition, and the ruling but embattled Congress party waffled all overindiana jones temple of doom Image7The BJP wants to put you in a cage, rip your heart out, and lower you into a volcano if you're LGBT. (Photo: Paramount Pictures) the place on the issue till recently.

It is heartening that Congress party leaders (Sonia and Rahul Gandhi, Omar Abdullah, Shashi Tharoor, Kapil Sibal and many others) have recently come out strongly in support of LGBT rights, and have condemned the Indian SC verdict.

Even more encouraging—the Congress-led coalition federal (Central) government has lodged an appeal with the Supreme Court, to review its own verdict. Hopefully, that will be a full bench hearing. Now, with an appeal filed by the executive branch of government with the judiciary, fingers crossed.

Other strategies under consideration include: an executive ordinance passed, while Parliament is in recess, pressuring Congress party-led state governments to repeal Section 377, given the SC appeal and more.

Most importantly, as I stated earlier, the breathing pause between the Delhi HC verdict of ’09 and the SC verdict of ’13, gave the LGBT community a well-used opportunity to build a widespread metropolitan infrastructure, as never before.

The LGBT genie is out of the bottle, and is here to stay. The nationwide and international Day of Rage protests are an indicator of this. The Indian LGBT community is unlikely to slink back into the dubious protections of the closet/almirah.

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