Section 377 was introduced by Lord Macaulay in 1860 as a part of the Indian Penal Code. A plain reading of the section makes clear that it punishes 'carnal intercourse against the order of nature' with either imprisonment of 10 years or life and fine. The provision reads, “Unnatural Offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

The question which the judiciary has struggled with since 1860 is to determine what exactly 'carnal intercourse against the order of nature' means. The meaning of Section 377 in 1884 was restricted to anal sex, by 1935 it was broadened to include oral sex and the judgements in contemporary India have broadened it to also include thigh sex.

If we are to search for a principle which holds together these various sex acts prohibited by Section 377, it was laid down as early as 1935. The Court in Khanu vs Emperor laid down that, “the natural object of sexual intercourse is that there should be the possibility of conception of human beings, which in the case of coitus per os [oral intercourse] is impossible”. It then went on to define sexual intercourse as “the temporary visitation of one organism by a member of the other organism, for certain clearly defined and limited objects. The primary objective of the visiting organisation is to obtain euphoria by means of a detent of the nerves consequent on the sexual crisis. But there is no intercourse unless the visiting member is enveloped at least partially by the visited organism, for intercourse connotes reciprocity. Looking at the question in this way it would seem that [the] sin of Gomorrah is no less carnal intercourse than the sin of Sodom.”

This idea of sex without the possibility of conception has been used by the judiciary over the last 140 years to characterize homosexuality as a 'perversion', 'despicable specimen of humanity', 'abhorrent crime', 'result of a perverse mind' and 'abhorred by civilized society'. What judicial interpretation did was to include both acts of consensual sex as well as acts of sexual assault under its catch all category of 'carnal intercourse against the order of nature'. It is also important to note that technically speaking, Section 377 does not prohibit homosexuality or criminalise homosexuals as a class but targets instead sexual acts. However the fact that these sexual acts are commonly(mistakenly) associated with only homosexuals has made homosexuals far more vulnerable to prosecution under the law than heterosexuals.

The judicial understanding of Section 377 has never been impacted by the Indian Constitution. Right since 1860 through almost 60 years of the Indian Constitution, the judiciary continues to follow the colonial justices of the Khanu era in characterising homosexuals as 'despicable specimens of humanity'. The right to equality, the right to dignity or the right to expression have never been seen fit to apply to lesbians, gay, bisexuals, hijras (transgender) or others whose sexuality does not conform to the heterosexual mainstream.

Prosecution under Section 377: A case of uncontrolled state power
The judicial understanding of Section 377 only legitimises and reinforces state power to persecute and harass those of an alternative sexual orientation or gender identity. This enormous power in the hands of the state to enforce its vision of morality finds frightening expression in the form of arbitrary and brutal state action.
I would just like to highlight one case of how Section 377 confers uncontrolled power on the state.
 On 4 January, 2006, four men were arrested in the North Indian city of Lucknow on the charge of having sex in a public park. A national level Fact Finding Team, on visiting Lucknow, found out that the First Information Report (FIR) filed by the police was an outright concoction and that in fact what happened was that one person’s phone number was obtained from a gay website, he was then beaten and tortured and forced to reveal the names of his other friends and an FIR was registered against these four and thirteen others. What is noteworthy about the case is that the police were confident that since these four were on the gay website , they were guilty under Section 377. They unleashed a media blitz in which the key exhibit was the sexuality of the four accused. Though the fact finding team revealed that the most the four could be accused of was putting their profiles online, the police went ahead and concocted a fictitious case under Section 377. The case illustrated the arbitrary powers in the hands of the state to periodically harass queer people in the confidence that it would never be a serious human rights issue. But what was interesting about this story of arbitrary state action in 2006 was that it resulted in protests across the country in Delhi, Bangalore and Bombay in which the queer community asserted that , 'The state response is in effect a clear attempt to terrorize the sexual minority population, clamp down on the very expression of anything outside heterosexuality and is fundamentally dissonant with any tolerant pretensions the government might have. It is unacceptable that in a context where gays, lesbians, bisexuals, hijras, kothis and other sexual minorities are being increasingly vocal and articulate about rights, the UP (Uttar Pradesh) State is attempting to push UP back to the dark ages, wherein individual autonomy was a casualty of the authoritarian State.'
The Social Impact of Section 377

The real danger of Section 377 lies in the fact that it permeates different social settings including the medical establishment, media, family, and the state. Thus it becomes a part of ordinary conversations and ultimately a part of the very social fabric in workplaces, families, hospitals and the popular press. This helps to create an environment where violence against queer people gains a semblance of legal acceptability. Section 377 expresses deep societal repugnance towards queer people and provides the fig leaf of legitimacy for the harassment of queer people by families, friends, the medical establishment and other official institutions. [1]

To take just two examples, 'Sodomy is illegal in India,' said Dr S [2]. This statement by a doctor shows how a law such as Section 377 has to be evaluated not merely in terms of the actual prosecutions but in terms of its impact in constructing mindsets. The effect on actions by authorities right from the medical profession to the National Human Rights Commission should be seriously studied to grasp how Section 377 has functioned as cultural signifier for the 'unacceptability' of homosexuality. [3]

Similarly the social intolerance fostered by the legal regime of Section 377, results in the situation wherein lesbian couple after lesbian couple feel they have no option but to commit suicide when faced with the dire reality of the Indian norm of compulsory marriage. Deepa from Sahayatrika, a voluntary organisation, has documented the cases of 23 couples in the tiny state of Kerala who have committed suicide rather than be forced into marriage. Of course this form of extreme intolerance is also being combated by the emergence of queer activism, but for many women from small towns without any access to the queer community it remains a lonely struggle to keep alive the revolt against compulsory heterosexuality.

Section 377 is a visible symbol of all that is wrong with compulsory heterosexuality and it is within this context that a queer critique has to be framed.

Challenging Section 377

The struggle against Section 377 will not only have to factor in the state but also take on board civil society voices such as that of the Hindu Right as well as AIDS deniers.

Added to the civil society voice one can also note that there is also a growing judicial recognition of the unacceptability of this law in a modern democratic society. However judges are constrained by the existence of the law.

The latest to publicly criticise Section 377 and urge its repeal is noted writer Vikram Seth who was supported by scientists, authors, teachers, academics and businessmen. As Seth put it, the problem with Section 377 is that 'By presumptively treating as criminals those who love people of the same sex, Section 377 violates fundamental human rights, particularly the rights to equality and privacy.' Noted economist and Nobel laureate, Prof. Amartya Sen, in a letter supporting Vikram Seth, eloquently notes,
'It is surprising that independent India has not yet been able to rescind the colonial era monstrosity in the shape of Section 377, dating from 1861. That, as it happens, was the year in which the American Civil War began, which would ultimately abolish the unfreedom of slavery in America. Today, 145 years later, we surely have urgent reason to abolish in India, with our commitment to democracy and human rights, the unfreedom of arbitrary and unjust criminalization.'

It is indeed unacceptable that in 21st century India we still have a law which denies basic constitutional rights to a section of the Indian population. As Justice Albie Sachs of South Africa put it while striking down South Africa's anti-sodomy law, 'it is only in the most technical sense (that this law) is about who can penetrate whom and where. At a practical and symbolic level it is about the status, moral citizenship and sense of self worth of a significant section of the community.' So if we believe that like all heterosexual married couples, homosexuals too should have the freedom to engage in intimate sexual acts without being subject to state harassment, then this law needs to go. The simple logic being that the Constitution cannot know or tolerate classes and there cannot be a law which is based on pure animus towards one section of the community.

1 Bhan et. al., Because I have a voice, Yoda Press, New Delhi, 2005, p. 8.
2 See my essay Its not my job to tell you its okay to be gay
3 Ibid.

Arvind Narrain is a lawyer and gay rights activist based in Bangalore, India.