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Human Rights India LGBTQ

IPC 377 and LGBT+ Safety in India

India has struggled to find LGBT+ equality on both the legal and social fronts since being colonized by the British. In 1862, superiors from the colonizing nation enacted the Indian Penal Code (IPC) to officially bring a Western-styled government into India.1 The code eschewed Indian laws grounded in Hinduism and put in place an intricate legal system. Anglican Christianity took over as the moral compass for the colony and animated in many of the codes. IPC 377 is a quintessential example; it has been used by Britain’s government,and, subsequently, India’s independent government, to criminalize homosexual acts,2 While the syntax was vague, IPC 377 was frequently referenced in the arrests of LGBT+ citizens for over a century.

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 the carnal intercourse necessary to the offense described in this section.4

In summary, intercourse outside the realm of “the order of nature” was punished by ten years of imprisonment and heavy fines or complete removal from society. Beastiality, prostitution, adultery, and homosexual acts all fell under the umbrella of this single code.5

In September 2018, the Indian government made a powerful ruling regarding IPC 377. The Supreme Court ruled that the law is not applicable to gay sex, decriminalizing the act.Furthermore, the court openly acknowledged the historical oppression of LGBT+ people in India and promised them full protection of the Indian Constitution both in the court of law and in everyday life.This was not the first move made by the Supreme Court in favor of LGBT+ rights. A ruling made just two years before in the case of Nalsa vs. India secured the right of transgender people to have legal recognition for their gender identity.8 However, this was more than an active legal change toward LGBT+ inclusivity; national leaders recognized their previous failures to protect its citizens and expressed real concern for the LGBT+ community.The historically conservative Indian government promised to take measures against the social stigma surrounding these vulnerable groups wherever possible. 

Shifting the traditional Indian ideology to achieve this goal is clearly difficult. The codes that define homosexuality as “carnal” linger strongly in people’s minds and in their institutions.10 LGBT+ people still face discrimination in workplace and in education.11 Adults who decide to openly identify as LGBT+ must do so at the detriment of their career trajectory. When students in school face bullying, they are often met with derision from the administration rather than a solution. In a survey by UNESCO conducted on LGBT+ students in Tamil Nadu, more than three-fourths of respondents reported bullying in schools related to their sexual orientation or gender identity.12 Of those who reported these incidents to school administration, over a third were blamed for making themselves a target, and another third reported that this response encouraged them to drop out of school.13

Still, some LGBT+ youth in India don’t even make it to school. Though investigation into the field is limited, these youth are often expelled from their homes before they learn enough skills to fend for themselves. This is especially true for transgender youth, who are often outed by family and friends. Even “unskilled” work becomes closed off to them in conservative communities.14 For many of these people, sex work becomes the only option to earn a living. This demonstrates the malice of IPC 377, even after the interpretation was changed. This code, while now protecting homosexual sex and sex involving transgender people, ruthlessly targets sex workers and requires minimal proof to do so.15 While wealthy and well-connected LGBT+ people may be safe, the impoverished and ostracized youth scattered throughout India continue to be hit hard by IPC 377.

A year and a half after the decision, there is an ongoing fight for equality. While sexual acts are decriminalized, same-sex marriage is still forbidden and self-identifying LGBT+ people are stripped of many of their rights, including serving in the army16 or adopting children.17 In fact, a survey conducted by India Today Magazine found that 62% of Indians were against the institution of same-sex marriage.18 And while the legal barriers to homosexuality are being torn down, LGBT+ youth still risk physical abuse and incarceration every day.19

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E N D N O T E S :

[1] Skuy, David. “Macaulay and the Indian Penal Code of 1862: The Myth of the Inherent Superiority and Modernity of the English Legal System Compared to India’s Legal System in the Nineteenth Century.” Modern Asian Studies, vol. 32, no. 3, July 1998, pp. 515–557., http://www.jstor.org/stable/313159?read-now=1&seq=1#metadata_info_tab_contents.

[2] Mugisha, Frank. “India and the Global Fight for LGBT Rights.” FP Global Thinkers, The Slate Group, 22 Jan. 2019, foreignpolicy.com/gt-essay/india-and-the-global-fight-for-lgbt-rights/.

[3] Srivastava, Sumit Saurabh. “Disciplining the ‘Desire’: ‘Straight’ State and LGBT Activism in India.” Sociological Bulletin, vol. 63, no. 3, 2014, pp. 368–385. JSTORhttp://www.jstor.org/stable/43854980. Accessed 19 May 2020.

[4] United States, Congress, Lewis, Angelo J. “Indiankanoon.org.” Indiankanoon.org. indiankanoon.org/doc/1569253/.

[5] Mugisha, Frank

[6] Knight, Kyle. “Section 377 Is History but Young LGBT Indians Need Concrete Policies to Protect Them from Bullying.” Human Rights Watch, Human Rights Watch, 24 June 2019, http://www.hrw.org/news/2019/06/24/section-377-history-young-lgbt-indians-need-concrete-policies-protect-them-bullying.

[7] Mugisha, Frank

[8] Knight, Kyle

[9] Mugisha, Frank

[10] Mugisha, Frank

[11] Gupta, Nishtha. “Where Is the Love: 62 per Cent Indians Say Same-Sex Marriages Not Accepted, Finds Mood of the Nation Poll.” Indiatoday.in, India Today Magazine, 31 Jan. 2019, http://www.indiatoday.in/magazine/web-exclusive/story/20190204-motn-same-sex-marriage-lgbt-rights-section-377-india-1439545-2019-01-25.

[12] “New Study on Bullying Based on Sexual Orientation and Gender Identity in Schools in Tamil Nadu, India.” UNESCO, UNESCO, 13 Mar. 2018, en.unesco.org/news/new-study-bullying-based-sexual-orientation-and-gender-identity-schools-tamil-nadu-india.

[13] “New Study on Bullying Based on Sexual Orientation and Gender Identity in Schools in Tamil Nadu, India.”

[14] Jha, Abishek. “A Hard Look At The Problem Of Homeless LGBT Youth In India And Abroad.” Youth Ki Awaaz, YKA Media Pvt. Ltd., 13 Sept. 2015, http://www.youthkiawaaz.com/2015/09/homeless-lgbt-youth-2/.

[15] Jha, Abishek

[16] Kelleher, Patrick. “The Indian Army Wants to Keep Homosexuality a Punishable Offence.” PinkNews, 3 Nov. 2019, http://www.pinknews.co.uk/2019/11/03/indian-army-keep-homosexuality-punishable-offence/.

[17] Banerji, Annie. “One Year after Landmark Ruling for LGBT+ Rights in India, Challenges Persist.” Reuters, Reuters, 6 Sept. 2019, www.reuters.com/article/us-india-lgbt/one-year-after-landmark-ruling-for-lgbt-rights-in-india-challenges-persist-idUSKCN1VR256.

[18] Gupta, Nishtha

[19] Jha, Abishek

By Rohan Tonk

I am a second-year Molecular, Cellular, and Developmental Biology Major at UCLA. I love exploring the space between science and law, specifically the policy that surrounds scientific advancement and its applications.

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