I'm Not Giving Up On Fighting Section 377

Most Indians would agree that your sexual preferences, sexuality, and partner should be your choice. Unfortunately the prevailing law of the land - drafted by Victorian-era Englishmen in 1860 - doesn't agree. Section 377 of the Indian Penal Code gives the state the authority to tell you what you can and cannot do in your bedroom.

Section 377 makes any sex apart from penile-vaginal intercourse between a man and a woman - any sex the authorities in power decide is "against the order of nature" - to be illegal.

Obviously this impacts the LGBTQ community, whose idea of what is "natural" reflects their sexual orientation. But it also impacts married heterosexual couples since theoretically, an act of oral sex between a husband and a wife is also illegal. And if you're not married to each other, of course, it's worse. If Bill Clinton had been an Indian, he might have survived impeachment after the Monica Lewinsky affair, but he'd have ended up in jail under Section 377.

I'm not just being frivolous. Though heterosexual prosecutions under 377 are rare indeed, we shouldn't have a law on the books that can be used to oppress and harass innocent people conducting their personal lives in private. What two people do to express their love and desire for each other should be strictly between them.

578 people were arrested last year for offences under Section 377. That's 578 people too many.

Section 377 should be amended so that all consensual sex between consenting adults, irrespective of gender and sexuality, is legal. But it should not legitimize forced sex, pedophilia or pederasty. That's why I drafted a Private Member's Bill that would have amended the law to do just that, but bigots from the ruling party defeated my attempt even to introduce my Bill in Parliament.

The BJP member who led the successful move to thwart my Bill spoke about Indian family values that he claimed would be undermined if Section 377 were amended. He quoted selectively from a Supreme Court judgement that struck down an earlier ruling by the Delhi High Court that Section 377 was unconstitutional. The Supreme Court, in fact, argued that it was the business of the legislature, not the judiciary, to scrap or amend the law.

I had been one of the MPs who openly welcomed the Delhi High Court's 2009 ruling and lamented the Supreme Court's decision to reverse it in December 2013. There was only time for a short two-week legislative session before the election code of conduct kicked in, in early March 2014, so the UPA Government was unable to introduce such a Bill. I waited a year and five parliamentary sessions for the BJP Government to initiate action, then realized they were not going to. So I decided to take matters into my own hands, in the hope of forcing the Government to pay attention. 

Attention has clearly been paid, but in the wrong way. The introduction of a bill is fairly routine - it is only at the discussion stage that I had anticipated opposition. Friday afternoons, when private members' bills are introduced and discussed, is usually quiet with a bare quorum in attendance, and many MPs leaving early to travel to their constituencies for the weekend. So I was taken aback when an unexpected challenge was mounted and the BJP was able to round up 74 MPs on a Friday afternoon to block the Bill's introduction. I learned later that a lot of homophobic comments were made privately by BJP MPs in the House and personal aspersions cast on me as well, but I've learned in politics to develop a thick skin, and I haven't wasted my time thinking about that.

The opposition to my Bill confirms that there's a lot of bigotry and homophobia around, allied to a deep-rooted hypocrisy that acknowledges the reality of homosexuality so long as gays don't express it openly. This is not just partisan politics. I believe the BJP is divided on the issue with some members, both senior and junior, in favour of decriminalization. Some of the BJP members who were most active that day were as keen on putting their liberal rivals within the BJP in their place, as they were in opposing a Congress MP. But though there were some BJP sympathizers for my Bill, they were cowed by the vocal bigots into acquiescence.

However, I'm not giving up.

I will resubmit the Bill in the next session, and try to get some support for it in advance, unlike last time. But obviously, if the BJP, with its crushing majority in the Lok Sabha, decides to oppose decriminalization, there's little that can be done before the next elections. The Opposition just doesn't have the numbers, and we have our share of prejudiced MPs too.

In the meantime, I am circulating a petition - to build public support to amend Section 377. If enough of us speak up, perhaps we can make the Prime Minister rethink Section 377 of the Indian Penal Code, 1860.

What I am hoping is for an open debate on the issue. I think parliament needs to hear - and the nation must hear it said in parliament - that this is not about sex but about freedom. Section 377 violates our constitutional rights of dignity, privacy, and equality (Articles 14, 15 and 21). It is a British relic, drafted in 1860 and based on outdated Victorian morals. It has no place in a modern nation like India.

I strongly feel that fair-minded people must be given a chance to educate themselves on this issue through a parliamentary debate. For instance, do MPs know that a 2014 study by the World Bank on "The Economic Cost of Homophobia in India" has revealed that India suffers a loss between 0.1 to 1.7% of GDP because of homophobia? Or that Section 377 costs the nation between $712 million to $23.1 billion in health costs (HIV, depression and suicides)? There's a price to be paid for bigotry, and the whole nation is paying it.

(Dr Shashi Tharoor is a two-time MP from Thiruvananthapuram, the Chairman of the Parliamentary Standing Committee on External Affairs, the former Union Minister of State for External Affairs and Human Resource Development and the former UN Under-Secretary-General. He has written 15 books, including, most recently, India Shastra: Reflections On the Nation in Our Time.)

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