Ruling in India Not the Last Word
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Published in: July-August 2014 issue.


“NO GOING BACK!” The message was clear after the Supreme Court of India’s decision to recriminalize homosexuality by reversing the judgment of the Delhi High Court that decriminalized adult consensual same sex acts in private. The complete reversal of the Delhi High Court’s progressive judgment came as a shock to the Indian LGBT community.

However, after momentary despair, anger, and fear, LGBT people took to the streets in an unprecedented show of dissent and defiance to the regressive verdict of the Apex Court. Activists, allies, and members of the community were clear that all that was done after 2009 when the Delhi High Court granted full and complete citizenship to queer persons will not be undone by the Supreme Court. The community showed a complete refusal to be pushed back into the closet or be dismissed as the “minuscule minority,” a phrase used by the Supreme Court to describe them.

Needless to mention, the legal battle is only one aspect of the struggle, and engaging with science, religion, and family are connected and parallel to the struggle against Section 377. However, my focus will be on the legal situation in India today with an eye to the historical background for recent legal developments.

Section 377

The contemporary queer movement in India can be traced back to the mid 1990s. A primary facet of this movement has been its struggle against Section 377 of the Indian Penal Code, 1860, which is India’s anti-sodomy law. This law is the only section under the chapter titled “Unnatural Offences” in the Penal Code. The law is contained in four lines and reads thus:

Section 377: 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.

Explanation: Penetration is sufficient to constitute carnal intercourse necessary to the offence described in this section. 

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