India: Section 377

I realize I am on thin ice here, writing this as a very obvious outsider in a country that I myself chose to visit. Nobody forced me to come here. I chose to fly halfway across the globe to visit this incredible country. I would thus like to state that I am very aware of the fact that it is not up to me to criticize the country that has so lovingly welcomed me as their guest, or even as a goddess, in accordance with the Sanskrit saying ATITHI DEVO BHAVAH (literally; “Guest is God”). I know I have no right to judge another’s culture, nor do I care to be a judgemental type of person. Yet, my heart sank when I read the headlines of this morning’s paper*. So I chose to write, with the aforementioned as a disclaimer.

Fact: India is the world’s largest democracy. Yet; there is no equality for her citizens. While the Indian Constitution guarantees equality before the law (Article 14), non-discrimination on grounds of sex (Article 15), freedom of expression (Article 19) and the right to life and personal liberty (Article 21), the law also includes the infamous Section 377**. This section, under which same-sex relationships are said to be an “unnatural offence” and punishable by a 10-year jail term, stems from the colonial era. Illogically, this makes Section 377 a 153-year old exception to the 76-year old non-discrimination constitution of independent India. But this is old news, so, what is today's fuss all about?

In 2009, the court ruled that Section 377 would be banned, acknowledging same-sex relationships in India. Today, however, the court ruled against this. This means a reverse in Indian equal rights, not just criminalizing, but re-criminalizing same-sex love. It is not just the lack of equal rights, or a slow response to change old colonial laws, but a conscious decision by the government to overturn and take back equal rights from its own citizens.

Love is love is love, picture by author

As Amartya Sen*** said in the Sunday Times of July 28, 2013: “Despite great successes in many areas over the last two decades, the fact is that India is in a dreadful state in many ways. Inequality is the main aspect of it. (…) After I got the Nobel Prize, (…) the West Bengal Chief Minister told me that my ideas hadn’t evolved, that I was still saying almost exactly the same thing as I was saying in the 50’s. So I said, “Look, the only thing I plead in my defence is that the problems haven’t changed. If you had solved them, I’d have stopped saying these things too!”

I do not want to disdain the (in)equality problems on so many other levels in India. But for now, for a moment, think about the consequences of the re-instalment of this specific Section 377. Are all the Indians in a same-sex relationship now criminals (again)? Think of all the people who, very daringly, took the leap of faith to come out of the closet after the legal back-up of 2009. Think of all the people who may have lost friends and family by daring to live their truths, now that at least the law had their backs covered. Had.

In India, many battles for equality are still being fought, concerning caste, religion, welfare, education, health care, gender and sexuality. Of course, this is not just true for India. Making sure fundamental human rights are covered should be the starting point and foundation for any and every country’s legislations. Not yet acknowledging them is spiteful, but taking them back is unforgivable.

PS: I am very aware of the fact that, unfortunately, inequality, be it legally or socially, of the LGBT community is not at all specific to India alone.

*Headline this morning: (this post was written on that day, and was originally a blog post on our travel blog)
** More on the international gay and lesbian human rights commission:
*** More on Amartya Sen:

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