Section 377 - An archaic, discriminatory law

SIXTY-SIX years after adopting one of the world's most liberal constitutions, India is being convulsed by a searing debate over a colonial-era provision in its penal code, Section 377, which criminalises "whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal." Though not widely used – there were 578 arrests under Section 377 last year – the law is a tool for the harassment, persecution, and blackmail of sexual minorities within India. It must be changed.

Beyond forcing millions of gay men and women to live in fear and secrecy, Section 377 has undermined HIV-prevention efforts and contributed to depression and suicides. A 2014 study by the World Bank revealed that India suffers a loss of between 0.1 percent and 1.7 percent of GDP because of homophobia.

The issue is not one of sex, but of freedom. By giving the state the authority to control what Indian adults do, consensually, in their bedrooms, Section 377 violates the constitutional rights to dignity, privacy, and equality enshrined in Articles 14, 15, and 21, respectively. As the Nobel laureate Amartya Sen has observed, "The criminalisation of gay behavior goes not only against fundamental human rights, but it also works sharply against the enhancement of human freedoms in terms of which the progress of human civilization can be judged."

In the period after a liberal Delhi High Court struck down Section 377 in 2009, the heavens did not fall; Indian society did not collapse. Yet bigots petitioned to reverse that decision, ultimately succeeding in turning back the clock for gay rights in India in 2013, when the Supreme Court overturned the High Court's decision.

Like many Indians, I found the Supreme Court's 2013 ruling antithetical to India's commitment to pluralism and democracy, which provides for the embrace of a multitude of identities, including those based on sexual orientation. So, last December, I sought to introduce a bill that would have amended Section 377 and decriminalised all consensual sex between adults, irrespective of their gender and sexuality.

A vocal section of homophobes in the ruling Bharatiya Janata Party (BJP) voted overwhelmingly against the bill's introduction, so that no pragmatic debate on the bill's merits could take place. The same thing happened when I tried again in March. Sneering comments were made about my alleged personal interest in the bill, to which I responded that one does not need to be a cow to defend the rights of animals.

The BJP's vote is incongruous on several levels, but most glaringly in its rejection of millennia of Indian practice in favour of a British colonial law (which the British themselves have outgrown). The Indian ethos toward sexual difference has historically been liberal, with neither mythology nor history revealing the persecution or prosecution of sexual heterodoxy. In fact, the Hindu epics are dotted with characters like Shikhandi in the Mahabharata, who was born female and became male; many Hindus venerate the half-man, half-woman Ardhanarishvara; and temple sculptures across India depict homosexual acts. Yet the BJP, the party of Hindu chauvinism, chooses to ignore this Hindu tradition.

In its 2013 judgment, the Supreme Court said that legislators, not judges, must decide the fate of Section 377. Unfortunately, thanks to the prejudices of a few dozen vocal and motivated BJP members, Parliament is not up to the task. Indeed, legislative recourse for the injustice of Section 377 may not be available as long as the BJP is in power.

But there is still hope for relief through India's judicial process. The Supreme Court has now agreed to undertake a "curative review" of its 2013 decision. Such a review could lead it to repeal Section 377 of the Indian Penal Code.

While I have been unsuccessful in my efforts to amend Section 377 through legislative channels, I remain committed to human rights, to keeping the government out of our bedrooms, and to defending Indian pluralism. As we await the Supreme Court's review, we can and must continue to seek justice for India's minorities in the court of public opinion. To this end, I have circulated a petition, with the goal of highlighting for Prime Minister Narendra Modi and his party that public sentiment has moved beyond the 19th century. With 65,000 people having already signed, the message is clear.

But, in terms of real change in this area, my hopes rest with the judiciary, rather than the government. After all, whereas change via legislation would require political courage – a quality sorely lacking in the current Indian government – the judiciary is not hampered by such considerations.

The good news is that India's Supreme Court has an exemplary record of interpreting statutes in a way that expands human rights in the country. The curative review raises hope that it will do so again, creating an India in which the law embodies constitutional values of privacy, equality, dignity, and non-discrimination for all citizens.

The alternative – allowing Indian law to continue to serve as an iron cage for some of our people – would directly undermine the freedom of identity and expression that constitutes the backbone of Indian democracy. What is more, it would leave India out of step with much of the rest of the international community, a country embarrassed before the world's other democracies.

We must demand that our Supreme Court – if not our lawmakers – affirm a pluralist India that accommodates all identities within our country. The time for change was many years ago. But it is never too late to do the right thing. I hope that the Supreme Court is listening.

The writer, a former UN under-secretary-general and former Indian Minister of State for External Affairs and Minister of State for Human Resource Development, is currently Chairman of the Parliamentary Standing Committee on External Affairs and an MP for the Indian National Congress.

Copyright: Project Syndicate, 2016.

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