Professor Samira Sheikh

HIST 288D: Images of India

5 November 2010

'Tis But A Queer India:

A Survey of Homosexuality

and The Legacy of Section 377 in India

I. Introduction

a. Framing Homosexuality and The Law in India

It is difficult to articulate a universal social construction of homosexuality¹, let alone position the sexual phenomenon within the broader historical framework of India. Part of the problem is that we are often confronted with moral, religious - or by such aforementioned inclinations informed - objections as raised by the general Indian population to unorthodox sexualities. This, of course, makes secular and objective readings more challenging, though not impossible.

For the most part however, we also need to keep in mind that Indian sensibilities against variant sexualities often find provenance in a baffling amalgamation of traditional socio-historical attitudes, the remnants of colonial gender anxieties in the form of legal restrictions like Section 377², and an outright unfamiliarity with the multitudes in sexual orientation beyond that of heterosexuality³. The result is an endemic homophobia, of which any attempt at addressing or eradication of the situation is seen by Indian society as a Western incursion unto “traditional” and “conservative” values⁴. Yet, the fear of Western-styled gay-rights activism in India represents an ironical turn because the most prominent incarnation of homophobia in India for more than a century - until its repeal in 2009 - was in fact, Section 377 of the Indian Penal Code, legislation introduced by the British as part of their 19^th century jurisprudential reforms in their various colonies⁵ across Africa and Asia.

Furthermore, considerable subjectivity exists in the formulation and construction of sexual identities as they apply to Indian society. It stands in opposition to the more or less standard operating terminologies widely used today that was conceived by Europe and the United States in the early 1990s, when a fledging academic movement in GLBT(QI) Studies was just coming into play. Today, the obstacle in delineating homosexuality in India lies in the sexual fluidity outside of heteronormative relations, often compelled by experimentation, and which remains invisible or hardly spoken about on account of public stigma⁶. Moreover, we also discover a third gender that features heavily in Indian culture: the hijras, transgendered individuals who hover in the liminal space between male and female, either due to natural physical anomalies, religious devotion, forced castration, or personal tendencies⁷.

Indeed, as Sherry Joseph suggests, sexuality studies in India have only began to become more relevant in the last decade⁸. But what is so important in proffering these distinctions is that it helps us define who or what should and should not figure into the umbrella label of homosexuality: Do we just consider men who have sex with men (MSMs)? Or should it include women as well? How about bisexuals and transgendered persons? What about those who merely experiment without heterosexual relations? For every variant sexual profession and practice outside of procreative heterosexualities, there would inevitably be different legal implications under Section 377 as it pertains to the individual in question, although the question of how and why is much more complex.

While the law does not so much criminalize the individual as it does conduct⁹ in theory, practices which define individual labels are more peculiar than universal: some people are and will be affected in more ways than others with Section 377 as we retain an overview within the entire sexual spectrum which is present in India. In addition, the application of the law¹⁰ becomes increasingly intricate when it is intertwined with jurisdiction, raising the question of what, how, and why the criteria for police apprehension and criminal charges to be filed have been, are, and could potentially be. By keeping tabs on these issues, it is in hopes of creating a more accurate narrative of homosexuality and the law in the country.

b. Discourse Trajectories

This research paper does not strive to offer an exhaustive and comprehensive insight of homosexuality and Section 377 in India, for such an aspiration would demand more rigorous dedication to time and research. Rather, it is designed as a survey of the 1) cultural and social histories of homosexuality in India and how they intersect with 2) the legal history, origins, development, consequences, and eventual repeal of Section 377 in 2009.

The work will henceforth proceed in three additional segments: Section II will explore the origins of Section 377 in India, assaying the religious impetus behind anti-homosexuality and/or anti-sodomy proscriptions in the bible, ecclesiastical Canon Law, and English Common Law and how they did or did not influence British work on the Indian Penal Code; Section III will discuss briefly the social climate after the introduction of Section 377, and with it, follow how the law was more broadly interpreted in various fashions to criminalize more than just homosexuality; and finally, Section IV will trace the path of the gay-rights movement and the eventual repeal of Section 377 in India.

II. Section 377: A Judeo-Christian Import

a. Religious Beginnings: From Leviticus to Common Law

In a 2005 rejoinder to the High Court of Delhi which had suggested that Section 377 generally expressed the traditional Indian intolerance to homosexuality¹¹, Naz Foundation asserted that Section 377 was imposed “undemocratically¹²” by the British colonial masters and it only “reflected the British Judeo-Christian values of the time¹³.” It was according to Alok Gupta, who was writing for the Human Rights Watch Report in 2006, “a sheer amnesia¹⁴” to neglect the religious connotations of the law.

If we review the genealogy of Section 377, we would discover that it finds its basis in the most influential disparagement of homosexuality that has been regularly invoked in the world from medieval to present times. This famous condemnation of homosexuality occur in two isolated passages from Leviticus in the Old Testament, proscribing the death penalty for the act itself:

You shall not lie with a male as with a woman. It is an abomination¹⁵.

And,

If a man lies with a male as with a woman, both of them have committed an abomination; they shall be put to death, their blood is upon them¹⁶.

Furthermore, early Christian theologians like Augustine and Thomas Aquinas have also looked up readily to Philo of Alexandria (20 B.C. - A.D. 50), a Jewish philosopher who was himself trying to reconcile the old testament with Classical traditions¹⁷. A firm believer of the commandment in Leviticus, Philo was disappointed with how Classical society often accepted the rampant manifestations of homosexual relations, a situation which collided with his religious beliefs. As a solution to what he thought of as a human disease, Philo “railed against effeminate men and called for them to be killed¹⁸.” In fact, Louis Crompton goes so far as to attribute the survival of the Isralite death penalty for homosexuality in subsequent criminal codes up until the 18^th century to Philo¹⁹.

Nevertheless, as James Neil notes in The Origins and Role of Same-Sex Relations in Human Society, homosexuality was hardly considered a taboo subject or activity prior to the propagation and rise of Judeo-Christian hegemonies. In fact, by employing examples from Classical Hellenic and Roman to Ancient Chinese and Indian histories, Neil goes on to point out that human sexual relations did not quite exist in monochrome:

The widespread homosexual traditions found among the vast majority of pre-Christianized indigenous tribal cultures are properly representative of human sexuality...the general patterns of sexual expression found among tribal societies are repeated over and over again among the great civilizations of human history...it is evident that the human species is an ambisexual species, and has been for a very long time²⁰.

Yet, after the Roman Empire was christianized in the early 4^th century, and while most of the dictates in Leviticus - such as mandatory circumcision, and kosher dietary requirements - have largely been abandoned, capital punishment for homosexuality was “incorporated into Roman law²¹.” It does not however mean that the condemnation of homosexuality did not exist prior, but with the assimilation of Christian doctrine into Roman legal discourse, homosexuality became officially persecuted by the state. This criminal stipulation against homosexuality later found its way later into the Justinian Code - devised in the early 6^th century - which in turn became the foundation and model for not only the Canon Law of the church, but also modern European civil law.

For the next millennium, homosexuality was considered not merely a religious sin, but also a criminal infraction by the church as well; persecution of homosexuality intensified during the medieval period, and the church remained responsible for discharging punishment for sexual sins. However, when Henry VIII divorced himself from the Catholic church in the 1530s, enforcement of homosexual prohibitions had to come under the secular courts²², which still subscribed to Christian morality. For the English, this meant that sodomy would have to be persecuted under Common Law, which was not so much a code in itself than a set of principles derived from past court judgements. Even so, Common Law saw the broadening of homosexual prohibitions overtime to make no distinctions between homosexual and heterosexual anal intercourse²³ - sodomy or buggery.

b. Back to India: The Establishment of Section 377

After conquering and annexing Sindh, Sir Charles Napier dispatched Richard Burton to conduct a wider study of India and the Middle East. Burton documented his findings in his “Terminal Essay”, which was published as an addendum to his translation of One Thousand and One Nights. What Burton had to say about India was unflattering, with especial regard to the homosexual, or more specifically, pederastic activities, which was associated with the Persian culture that Muslim India had partly adopted: “the cities of (Afghanistan and) Sindh are thoroughly saturated with Persian vice...the Sikhs and the Mosems of the Punjab...always include boys to accompany the men²⁴.”

On the other hand, Indian Hindus had also expressed an “implicit tolerance” for homosexual practices, although there is “wide variation... from the extreme sexual asceticism of some sects to the active encouragement of sexual activity among Tantric sects²⁵” with regard to homosexuality. To corroborate his point, James Neil catalogued a fascinating array of erotic art on Hindu temples which graphically portrayed men fornicating with other men²⁶. It was no surprise then that the new colonial masters of India in the early 19^th century were shocked by the prevalence of heterodox sexual practices from both Muslim and Hindu Indians²⁷. Alternative sexualities would have been as much foreign to them as the culture itself already was.

At the same time in the British metropolis, a 19^th century overture by the Utilitarian philosophers to reform its criminal laws was still ongoing. As Douglas Sanders put it, “British criminal law was a mess, in need of major reform and rationalization. Jeremy Bentham, John Stuart Mill, and the Utilitarians had strong ideas on law reform and codification²⁸.” The Utilitarians believed sexuality matters should remain within the private domain, and accordingly agitated for the non-intervention of government. By 1884 and after eight unsuccessful attempts, a code of criminal laws was still not in sight²⁹. In fact, while the British had eventually conceived and implemented criminal code systems in its various colonies starting in 1860 with India, the United Kingdom still does not possess one for its own use even today.

Nonetheless, another movement separate from the metropole in the larger colonial project to “consolidate and rationalize the splintered (judicial) systems prevailing in the Indian subcontinent³⁰” was also gaining steam in the 1830s. In the absence of a credible code of criminal laws at home, the English's attempts to design one for its colonies was at best an experiment. Spearheaded by Sir Thomas Babbington Macaulay in 1835³¹, the Indian Law Commission looked to Common Law and formulated the first draft of the Penal Code, which included Clause 361 and 362 to prohibit sodomy. It was crafted deliberately with not only unclear, but also injurious language:

Clause 361 and 362 relate to an odious class of offences respecting which it is desirable that as little as possible should be said [...we] are unwilling to insert, either in the text or in the notes, anything which could give rise to public discussion on this revolting subject;...the injury done to the morals of the community by such discussion would far more than compensate for any benefits which might be derived from legislative measures with the greatest precision³².

It was not until 1860 that the legal clause we know as Section 377 was rendered in much leaner, clearer, but still euphemistic language, suggesting some discomfit and sexual anxiety on part of the British:

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 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 section³³.

c. Implications

Despite the complex process in creating the Indian Penal Code, the inclusion of the anti-sodomy law within it had three major functions for the British colonial masters. Firstly, it was to regulate sexual behavior of the British subjects, with a conformity to British Judeo-Christian sensibilities. This, is in no little part, on account of the British commitment to the supposed civilizing mission invoked regularly to justify imperialism³⁴. Furthermore, in the course of their imperial expansion, some British were truly revolted by the prevalence of homosexuality in not just India, but also several of their other colonies; by possessing the 377 clause in the Penal Code, it creates a tremendous deterrent factor to aberrant sexual behaviors. The religious undertones ring two pitches here in Section 377, one in its derivation from Common Law and its roots in Leviticus, and the other a moral distress compelled by the predominant Christian views of the time.

Secondly, by implementing some kind of systematic control over its subjects in the form of legal boundaries - even within the private realm of sex - the British could forcibly establish hegemony with its own brand of jurisprudential and political wisdom imported from the metropole to the colony. Finally, Section 377 also reflected the colonial masters' collective gender and sexual anxieties in a foreign landscape, and by using legal measures against questionable or variant sexualities of their subject, it was in an effort to quell their own insecurities. As Gupta asserted,

The European codifiers certainly felt the mission of moral reform — to correct and Christianize “native” custom. Yet there was also the need to protect the Christians from corruption. Historians have documented how British officials feared that soldiers and colonial administrators — particularly those without wives at hand — would turn to sodomy in these decadent, hot surroundings³⁵.

On the side of the colonial subjects, the corollaries in the introduction of Section 377 were far more entangled. The “implicit toleration” which existed with some degree of sexual conservatism was effaced away. Yet, much of the Indian population would not have been aware of the Judeo-Christian values in Section 377, because much of the religious language like “abominable”, “vice”, and “buggery” has been excised³⁶; the law became part of the “traditional” Indian reproach again homosexuality. Even so, while the general trend of homosexuality was driven underground, Section 377 was wielded against certain groups of people – especially the hijras – and the law became an instrument of oppression that at times operated beyond the prosecution of homosexual relations and practices.

III. Let Us Be Anal: A Legal Discourse of Section 377

a. Explicating The Law

Section 377 replicates to a certain extent the language first devised by Edward Coke³⁷, criminalizing “carnal intercourse against the order of nature with any man, woman or animal³⁸” - - essentially, it is an inheritance of English Common Law pertaining to Buggery³⁹. Although the law covers a wide spectrum of sexual activity, male homosexuality was largely associated with it, because a) it was closely related to anal sex which was the original intent of Buggery prohibitions, and b) it was typically easier to identify or allege such activity between two persons. In this segment, we will explore some Indian landmark cases that saw the broadening of Section 377, the methods in which the law has been enforced, and how it ultimately resulted in an epidemic of abuse and discrimination by the authorities.

b. Beyond Sodomy in Section 377⁴⁰

Since the introduction of Section 377, two landmark cases have placed oral sex under the law's jurisdiction. The Travancore Court in 1898 ruled that while original anti-sodomy laws in Britain must entail cotius per ano, the language in the Indian Section 377 was “simple and wide enough to include all acts against the order of nature⁴¹.” The decision in Khanu V Emperor confirmed the judgement in Sirkar, and put forth refined definitions of 'nature in sex', 'penetration' and 'carnal intercourse'. The former must include “the possibility of conception of human beings”; the latter two occur as long as there is,

...a temporary visitation to one organism by a member of the other organism, for certain clearly defined and limited objects. The primary object of the visiting organism is to obtain euphoria by means of a detente of the nerves consequent on the sexual crisis. But there is no intercourse unless the visiting member is enveloped at least partially by the visited organism, for intercourse connotes reciprocity⁴².

In 1968, the Gujarat High Court proposed an 'imitative test' which would define the sexual activities that Section 377 would cover. As Gupta summarized the rubrics of this 'imitative test': “oral sex imitat(ing) anal sex in terms of penetration, orifice, enclosure, and sexual pleasure... could also be punished under Section 377⁴³.” This test as formulated in Lohana Vasantlal Devchand v. The State⁴⁴, was subsequently crucial in positioning inter-crural sex - which is sex between the thighs - as a crime under the law⁴⁵. Later in 1992, mutual masturbation was also considered criminal under Section 377 because the court ruled it as imitative of anal intercourse⁴⁶.

c. Enforcing The Law: An Epidemic of Abuse

One of the problems in the functionality of Section 377 as articulated by Sanders is that “there has been very limited direct enforcement⁴⁷.” In instances where the law has been actively employed, the targets were often the hijras. A 1897 amendment to Vagrancy Laws in British India possessed the following subtitles, “An Act for the Registration of of Criminal Tribes and Eunuchs⁴⁸”, linking the hijras identity with the Vagrancy Laws and Section 377.

Authorities kept a running nominal roster of eunuchs, and reasonable suspicion of flouting Section 377 was sufficient for charges to be brought against them⁴⁹. A prominent case is found in Queen-Empress v. Khairati⁵⁰, where the defendant - a member of the hijras community - was kept under police scrutiny as part of anti-vice operations, and apprehended when he breached anti-mendicant clauses of the Vagrancy Laws. Upon medical examination, Khairati's anus was found to be distended in the shape of a funnel, “a sign of a habitual sodomite⁵¹” - and therefore, he was found guilty.

In another 2001 case, under mere suspicion, the authorities were also able to bring Section 377 charges against four HIV/AIDs workers who worked regularly with MSMs as part of the Naz Foundation's operations in Lucknow, claiming that they were involved in a “gay sex racket⁵²”. These allegations were later proven to be untrue, although details of this case were more insidious, pointing to a systemic corruption within the police force that saw regular exploitation of Section 377 for fiscal gain⁵³.

d. Implications For The Homosexual Community

The expansion of Section 377 to cover a wider variety of sexual activity was increasingly aimed at the MSMs, that the scope of culpability became not so much confined to the act itself, than it was the identity itself that would and could be prosecuted under the law. In fact, the association of the hijras with Vagrancy Laws as an extension of Section 377 - which protracted the criminality from actum per se, to the identity - further point to this trend of personhood discrimination which Gupta had termed “Marked Bodies⁵⁴.” Furthermore, in the vacancy of child abuse laws, Section 377 was used to prosecute pedophiles, an association unsavory to the homosexual community.

Moreover, the enforcement of Section 377 was also intricate for two reasons. While there were no specific numbers with regard to the occurrence of homosexual activity, it seemed to have been usual and endemic in everyday establishments. As Paripurnanand Varma put it, “sodomy and Lesbianism are not absent from Indian educational institutions, hostels, dormitories, penal institutions, etc. Sometimes, cases come to light but more often than not, for social reasons they do not reach the courts⁵⁵.” Secondly, most of the cases which eventually reach the court usually deal with public indecency, fornication or rape, impugning on “mere suspicion” as an impetus for police and judicial action outside of public spaces and the legitimacy of Section 377 inside the bedroom under existing privacy protections. Furthermore, it skirts the issue of consensual individuals altogether.

Gradually, Section 377 transformed into an instrument which abetted “blackmail, extort, rape, and physical oppression⁵⁶”. The police was especially inclined to abuse their constabulary powers for personal gain. As Aditya Bondyopadhyay described the situation:

Policemen take advantage of this fear of the judicial process to threaten sexual minorities...rapid redress is a virtual impossibility...(that) sexual minorities usually pay up or accede to the abuse. The lack of a paper trail – of records of consensual sexual acts between adult males - is in turn used...to claim that 377 is a benign provision chiefly enforced, as they falsely claim, to deal with male rape...Today the issue of Section 377...is a question of corruption⁵⁷.

On the other hand, the rhetoric of religion which had been removed from the language in the formulation Section 377 persisted in the courts. Even operating within a secular framework, the opinions of the judiciary were often adamantly intertwined with Judeo-Christian sensibilities. Regular and outright references to the “Sins of...Sodom” and “Gomorrah” were found in the decisions, while the words “abominable” and “against God” were also often noted⁵⁸. The Leviticus origins of Section 377 recall to mind once again.

All these patterns suggest an obsession of the authorities with policing the moral values of the population. To an extent, such a preoccupation stems from the construct of the law itself - - on a more pernicious level, the religious-moral objects continue to unveil itself here. Additionally, complications arise when we deal with the effectiveness and limitations of the law in its enforcement or non-enforcement, the potential for abuse, and its overarching umbrella of definitions and associations. While the stage for discrimination and homophobia in Indian society was Section 377, the actors were in fact the police and the bench persons, the agents responsible for the administration of the law. In the legal discourse of Section 377, we are confronted with the escalating irrelevancies and inefficacies of the law. As we will later see in Section IV, the legal fallacies and the weaknesses in the enforcement of Section 377 will eventually prove fatal to the very legislation itself.

IV. A Relic At The End of The Road

On 26 September 2006, frustrated with the climate of fear encouraged by Section 377 of the Indian Penal Code against the LGBTQI community, more than 100 of India's leading figures in literature, entertainment, politics, academia, and religion, rose to the clarion call of justice. By affixing their signatures to an open letter crafted by Vikram Seth, these well-known personalities demanded that the government review the “archaic⁵⁹” piece of legislation that had “spawned public intolerance and abuse, forcing tens of millions of gay and bisexual men and women to live in fear and secrecy, at tragic cost to themselves and their families.⁶⁰”

To Seth, Arundhati Roy, Swami Agnivesh, and the many other undersigned individuals of the public epistle, it was not merely a human rights violation at stake. There was also a crisis in healthcare. In a failing effort to staunch an escalating HIV/AIDs pandemic, NGOs like Naz Foundation were struggling to reach out to the LGBTQI community, the implications of Section 377 having played no small role in providing faux legal basis for the Indian authorities to hinder their operations and outreach.

While there is no concrete starting point to the gay-rights movement in India, the legal debate surrounding Section 377 began with the public interest litigation filed by Naz Foundation (India) Trust in 2001, partly in response to police action against four of their employees for allegedly being part of a “gay racket⁶¹” - - this was later proven to be fabricated by the police authorities. The preamble to the court decision described the challenged faced by NGOs like Naz Foundation: “HIV/AIDs prevention efforts were found to be severely impaired by discriminatory attitudes exhibited by state agencies... under the cover of enforcement of Section 377 IPC⁶².” Although the Delhi high court dismissed the case in 2004, asserting that the petitioner had non locus standi in the issue, the case found its way again into the high court in 2006 - - this time, riding on the waves of gay-rights activism which had strategically employed the apex court to coerce a fair judicial hearing “on merit” of the case⁶³.

Furthermore, the legal opinion of homosexual activity as a criminal offense around the world has transformed considerably since the early 20^th century, from an insistent sexual policing under the law to a Utilitarian philosophy of non-intervention in private sexual matters. Most notably, the Wolfenden Report of 1957 in the United Kingdom had recommended that:

The law's function is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others ... It is not, in our view, the function of the law to intervene in the private life of citizens, or to seek to enforce any particular pattern of behaviour⁶⁴.

The Wolfenden Report was integral to the subsequent passage of the Sexual Offences Act 1967, which decriminalized consensual homosexual intercourse in the United Kingdom. By the late 1980s, most of Europe had extirpated criminal stipulations against homosexuality⁶⁵. Elsewhere in the United States, the last of sodomy laws was struck down as unconstitutional in Lawrence v. Kansas⁶⁶ by 2003.

The growing awareness of gay-rights in India was intertwined with the the events that have transpired outside the country. No longer were Indian gay-rights activists willing to accept that Section 377 was legitimate on the basis of protecting the society against moral putrefaction, especially when their colonial masters had eradicated it in the 1970s, and many other progressive countries have had also established private realms of sexual morality - short of pedophilia and bestiality - in which the law cannot interpose.

Moreover, there was also an increasing frustration with the religious and moral objections put forth by society itself. This was most notably seen in the violent public reaction to Deepa Mehta's 1998 film, Fire, which had contained lesbian undertones in its narrative and impugned on traditional masculine heteronormativities within an Indian context⁶⁷. Much of the dissent of this film came from religious compulsions, and the homophobia was overwhelming: people took to the streets, cinemas were razed, protesting the homosexual content of the movie. Yet, there were two unintended but vital consequences for the gay-rights movement. Not only did the film encourage a wider discourse on gender politics, it was also responsible for a consciousness raising within the lesbian community, which inevitably brought its fate together with the larger gay-rights movement⁶⁸. For the first time, Section 377 became an issue that concerned lesbians as much as it concerned the male bisexual-, homosexual-, and the hijras communities. If Section 377 was not eradicated, discrimination and abuse against the LGBTQI community on religious and moral grounds would persist, exerting a perturbing stranglehold on public discourse, and finding its utmost strength in the law - - if Section 377 stayed, the LGBTQI community would never come to possess the same prerogatives and protections enjoyed by the heterosexual majority.

It was this consolidated gay-rights activism propelled the apex court to impose a certiorari on the high court to review the second public interest litigation Naz Foundation had filed in 2006. But the support system extended further. June-July 2008 saw an unprecedented wave of maiden gay pride parades in major Indian cities, and it was important in rallying the LGBTQI community out of the closet: these pride parades were nexuses in which support from the most prominent ranks of entertainment and government could find its way into the public sphere. Most notably, Osar Fernandez, the minister of state of labor and employment, had spoken out against the discrimination confronting the LGBTQI community and the obstacles of HIV/AIDs prevention efforts, calling for the law which had abetted this situation to be repealed⁶⁹. The activism had paid off, that even members in government were responding to the sounds of the trumpet.

Public and social activism continued to trundle along as the legal battle waged on in court. The most remarkable tension in the courtroom was represented by the dissent in the affidavits between the Home and Health ministries on the question of repeal⁷⁰. In fact, what would be resolved here would determine the destiny of Section 377.

The Health Ministry was particularly honed with the argument of how the repeal of Section 377 would benefit HIV/AIDs prevention, aligned with the notion that the constitution in which the LGBTQI community was part of, also protected the same rights to life and equality⁷¹. On the other hand, the Home Ministry had mostly resorted to moral-religious objections as posed by the public. However, while the Home Ministry conceded that a secular judiciary and governmental framework had no place for such objections, it also contemporaneously extolled a Devlin-Dworkin jurisprudential argument which stated that the law was also responsible for regulating societal behavior that should or must conform to community standards⁷². The court continued to mull over the conflict, but it was certainly not fond of the moral-religious perspectives.

On 2 July 2009, the final nail was hammered into the coffin for Section 377. The high court had deemed Section 377 unconstitutional, decriminalizing homosexuality throughout India, although there were no retroactive provisions. In the court decision, the Chief Justice S. Muralidhar made a case for inclusiveness and equality, which to the court, were the fundamental bases of not just the constitution, but also traditional Indian society:

Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non- discrimination. This was the 'spirit behind the Resolution' of which Nehru spoke so passionately. In our view, Indian constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTS are. It cannot be forgotten that discrimination is anti-thesis of equality and that it is the recognition of equality which will foster the dignity of every individual.

The religious and moral rhetoric of Section 377 was put down like a ravaging canine, and the triumph of secular utilitarianism was in hand. The war for the dignity of the LGBTQI community was finally over after 8 years of legal skirmishes, and nearly 150 years of abuse and discrimination. Section 377, was now a relic of the past.

V. Conclusion

The legacy of Section 377 in India is a story with a tangible vanishing point, and its ending is a result of the convergence of multiple vectors and forces. To put it succinctly, there were three factors that were most important: 1) The HIV/AIDs epidemic which Section 377 implicitly contributed towards presented one of the most compelling arguments on which Naz Foundation capitalized in galvanizing the Public Interest Litigation. 2) The surrounding gay-rights activism was also equally important in rallying support for the legal battle and transforming the sentiment in the court and on the ground. 3) Moreover, the legal climate was ripe for change after precedents in Europe and USA leadings the abolition of sodomy laws.

Even so, we cannot neglect the Judeo-Christian provenance of the law and how the campaign to repeal Section 377 was often surrounded objections that were also often religious in nature. The rhetoric of religion has inextricably played a significant role in the formulation and maintenance of the discriminatory law, and it was only in placing an emphasis and priority on equality and utilitarian exigencies like halting the HIV/AIDs epidemic – not the dismantlement of the religious-moral objections – that the law was repealed. If nothing else, this phenomenon should continue to be a source for concern that religion should have considerable influence on secular political, judicial, and public discourses.

As mentioned in the introduction, this research paper is designed as a survey of the intersections of the legal history of Section 377 and the socio-cultural history of homosexuality in India. What was most prominently yielded from this enterprise was the dangers of the rhetoric of religion that has seemed to be insidiously embed itself in morality, society, and the law that sometimes, such religious associations are often not immediate and clear to us. Yet, this survey is non-exhaustive and there is certainly more to the dynamics of religion within this intersection that has yet to be explored.

Furthermore, the repeal of Section 377 remains so recent, that materials and academic surrounding it and its legacy have also not been as forthcoming. Therefore, the issues of homosexuality, the gay-rights movement, and the legacy of Section 377 in India continue to present a wealth of research opportunities yet untapped. Perhaps in doing so, we might also provide further glimmers of hope for the gay-rights social activism in other countries like Singapore and Uganda, that are still struggling with archaic legislation left behind by their former colonial masters.