The British Legacy Of Section 377 That India Needs Azaadi From

Posted by Biswadeep Tamang in Human Rights, LGBTQ, Society
February 4, 2017

Britain made an effort to deliver justice by posthumously pardoning Alan Turing, a computer scientist – and many others – convicted of having committed ‘unnatural’ offences. The Turing bill became a law on January 31, 2017, in England and the Wales. This law is named after him. It will be seek to pardon those convicted by the laws that used to criminalize homosexual acts.

India has inherited many of Britain’s laws – some of which have been repealed in the past, and many are in the process of getting repealed. When the Budget session started on January 31, 2017, the country was informed that 1100 obsolete laws had already been repealed, and that a further 400 obsolete laws would be repealed.

However, one such obsolete law, the Section 377 of the Indian Penal Code, is yet to be considered by the govt for its removal from the law book. The real inheritors of Section 377 should have been the British – but they have already removed it from their law books in 1967. However, this section is still alive – and well functional.

Section 377 affects millions in India’s population – which the Honorable Supreme Court had understated as a ‘minuscule minority‘ in its judgement in December 2013. The reference of ‘minuscule minority’ is highly contested. Ironically enough, the BJP Govt in Maharashtra gave ‘minority status’ to few thousand Indian Jews. This shows the Indian judiciary is not in tandem with the law makers – and that its own calculation of a ‘minuscule minority’ is highly skewed. It is very convenient for any government agency to ignore the rights of ‘minuscule minorities’. Probably, only by ignoring the numbers, will the Honorable Supreme Court be able to uphold the ‘special rights’ of Indian Jews, which they are entitled to enjoy as an ethnic and religious minority by the provisions of Article 29.

Mahatma Gandhi once said, “No charter of freedom will be worth looking at which does not ensure the same measure of freedom for the minorities as for the majority.” Section 377 of the IPC (Indian Penal Code) does not adhere with the Directive Principles of State Policy, as the section violates Article 14 (Equality), Article 15 (No discrimination), Article 19.1a (Right to expression) and Article 21 (Right to life and personal liberty). Section 377 was introduced in 1860, by the British government, after being drafted by Lord Macaulay in 1838. This section fundamentally narrows down the bandwidth of freedom for millions, as it is blatantly interpreted and misused to harass the ‘sexual minorities’, both by the police and the ‘virtuous moral policing’ team.

On July 6, 2001, the Uttar Pradesh police arbitrarily arrested four members of two non-governmental organisations (NGOs) working with sexual health problems of men, raided their office premises and seized educational material. They were tortured, beaten up and starved for more than 42 days. The district judicial magistrate refused to bail them out. The petitioner moved his case to the High Court – and after 42 days, they got the bail. A medical examination was done on all the four – but no evidence was found to charge them under Section 377. Uttar Pradesh in 2001 had a BJP government, both in the state and the centre.

Further examples of such abuses after 2001 would include the following:

1. Bangalore Incident (2004: custodial torture of LGBT persons)

2. Delhi Incident (2006: custodial rape of LGBT persons)

3. Chennai (2006: suicide of LGBT person due to custodial torture by the police)

4. Bangalore (2006: arbitrary arrest and illegal detention of LGBT persons)

5. Goa (2007: criminalization of consensual sexual acts)

6. Aligarh (2011: violation of the privacy of LGBT persons that succumbed him to commit suicide)

7. Mumbai (2016: lesbian couple commits suicide after parents reject them)

8. Kolkata (January 2017: man threatened with corrective rape by family)

These cases got the spotlight but thousands still go unreported. The National Crime Records Bureau has reports that police arrested exactly 1,491 people in 2015 alone.

Homophobia may have existed before the Delhi Sultanate but not in a magnitude as we encounter today. The cultural assimilation in the Indian sub-continent started after 12th century. The advent of the Islamic empire and the British (Victorians) made a huge impact on the Indian society. Some laws in Islam and the Victorian law (now invalid) condemn homosexuality, contrary to which, Hinduism never had any strict law to prosecute the same-sex expression. The law of the land is pivotal on creating a perception in society. The onset of homophobic laws can be attributed to the homophobia brought along with the advent of Islam and the British. These new regimes brought their culture along with them – and one regime after the other caused a cascading effect that multiplied the terror of homophobia in the Indian society.

Various surveys say that the rate of suicide attempts is 4 times greater for LGBT youth compared to their straight folks. LGB youth who come from highly rejecting families are 8.4 times as likely to have attempted suicide as LGB peers who reported no or low levels of family rejection. The homophobic atmosphere can therefore impact the mental health of a child. Acceptance from parents and society can make things better. It is only possible when the legal system comes hand in hand with eradicating the stigma of homosexuality, and makes an inclusive society. Societies evolve, and the same must be reflected on and by legal systems. The onus is on the lawmakers- whether to uphold or rescind the regressive laws of the country.

PM Modi tweeted, in no time at all, in commemoration of the 49 killed in the Orlando gay bar in June 2016. A pertinent question that must be raised here is whether the Prime Minister will walk an extra mile, and undo the mistake done by the apex court? Will he make an effort to wipe homophobia and ignorance that was smelled within BJP when they voted against the private member bill, which could have decriminalized homosexuality, in 2016?

It was the Labor party that initially backed the Turing Bill in the UK parliament, but the Conservative Theresa May decisively threw her party weight and supported the bill that became a law few days back. The same kind of bipartisanship is needed in the Indian parliament where MPs may have strong and divisive opinions on some of the pressing issues – but there are ways to find a common ground. However, with many BJP leaders having an orthodox outlook, is it true, after all, like Shashi Tharoor had stated, that BJP’s brute majority is an impeding agent for the gay rights in India?

It is imperative for the government to understand that treating ‘sexual minorities’ of this country as second class citizens, with an aggressive implementation of an archaic law, is not raj dharma. The dream for Ram Rajya is of every Indian – not just a theocratic one – but one that will uphold the ideals of equality, justice, liberty and integrity. The government therefore needs to trash Section 377 along with the other 400 obsolete laws, at the earliest.

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