* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.
When the British came to India, they didn’t just colonise our nation they colonised our traditions and bred a culture of bigotryI am a homosexual man and I am an Indian national. These are two identities and they are not mutually exclusive. In fact, I belong to a nation where my identity has always been respected. However, when the British came to India, they didn’t just colonise our nation they colonised our traditions and bred a culture of bigotry. Our ancient murals stand testimony to acceptance of love in all forms.
Thomas Babington Macaulay, 1st Baron Macauley, drew inspiration from the Buggery Act of 1533 passed during the reign of Henry VIII, when he introduced section 377 to prohibit sex against “the order of nature” as part of the Indian Penal Code of 1860.
The law does not criminalise identity, however. I cannot be jailed for being gay under section 377, but if I have sex that is not “peno-vaginal”, as the law describes it, I could face up to 10 years (or a life term) in prison. Sex between men, sex with transgender people and heterosexual oral or anal sex, all fall under this category. In a very broad sense, sex for procreation is considered normal and sex for recreation is seen as unnatural.
It is ironic that our colonisers and their neighbours have got rid of the law. Yet while we in India suffer from this colonial hangover that imprisons our bodies, it is unable to imprison the free spirit of the human mind.
Section 377 is a blot on humanity.
Any interpretation of the law ensures that it is exploited by troublemakers, so it should come as no surprise that there has been a correspondent rise in extortion cases.
The modus operandi is simple – a queer man receives an invitation to meet somewhere private. Once there, during sex there would be a knock at the door. Men would barge in and demand money. Section 377 is used as a weapon and victims choose to pay the blackmailers rather than spend a lifetime in jail. There is no provision for consent under the law. So whether it is consensual or rape, people engaged in these types of activities could face punitive action.
Section 389 of the Indian penal code states that existing laws cannot be used for extortion. But section 377 breeds such social stigma that people don’t even reach the point of registering a complaint. Many commit suicide; others live lives dominated by the fear of being arrested.
Section 377 polices the private life of individuals. Why should the law peep into the bedrooms and proscribe the kind of sex that they have? The only factor that should matter is whether it is consensual, between adults and in private.
The law is not only bad for humanity, it also has a damaging effect on the economy. The World Bank has reported that the economic cost of homophobia to India is between 0.1 and 1.7 percent of the country’s GDP. How can you work with peace of mind when you have such a threat lurking over you?
I squarely blame Britain. The countries that are struggling with section 377 are all previous colonies. Luckily, we have provisions in the constitution that help us to fight back: Article 14, which guarantees equality before the law to all individuals; Article 15, which ensures that no person shall be discriminated against on the basis of caste, gender, creed; and Article 21, which ensures the right of life and liberty to all the citizens of India.
The arguments in favour of section 377 fall flat. The law is not Indian culture; acceptance without bias is Indian culture.
Our constitution reinforces the fact that we are not just a nation with a high tolerance to diversity; it is no act of benevolence – we are a nation where acceptance of diversity is a norm. Our ancient murals depict a moral canvas that is not restricted to certain acts of love, but all forms of it. Our indigenous faiths restore our faith in humanity and equality. Here, we are not just born out of love – rather than sin – we are born into love. There is a difference.
The defenders of the law expose the limits of their intelligence. Ridiculous statements are made by reputable persons. One such argument is that homosexuality is a vice and yoga is the cure.
The arguments of our detractors remain stuck in a Victorian mindset.
But India will change. We will go back to our roots. We will throw out the British once more, but British law this time. Our lives will get better. It is a matter of time. In time, we will all be equal once more in the eyes of the law.
Harish Iyer is an LGBT activist based in India.
