A colonial law that criminalizes gay sex, Section 377, is up for review. But its long use as a cover for blackmail and assault has created lasting fear.
âIndiaâs Supreme Court on Tuesday started hearing a challenge to one of the worldâs oldest laws criminalizing consensual gay sex, a debate that has raised broader questions about how far to extend equal rights in the country.
Indiaâs Supreme Court will review Section 377âs constitutionality, creating a surge of hope for lawyers and activists who have been campaigning against the law for years. But hope is tempered by years of disappointment. Even now, it is an act of calculated risk to identify publicly as being gay in India, or to advocate for change.
In interviews conducted over three months, gay and transgender Indians from across the country described the cost of living in a country that has forced them to be outlaws: shunning by parents, social isolation, few protections in the workplace, and a frightening vulnerability to both police abuse and sexual assault with limited legal recourse.
Victims of blackmail or sexual assault often hesitate to approach police for just that reason, fearing they will be arrested â or worse. âThe rich ones, they will extort money from; the poor ones, they will use for sexual favors,â said Mohnish Malhotra, a gay-rights activist in New Delhi.
But India was once at ease with depictions of same-sex love and gender fluidity. In Hinduism, gods transform into goddesses and men bear children. Rekhti, a genre of poetry that flourished in India from the late 1700s, describes erotic encounters between women.
When British colonizers arrived in India, that acceptance of homosexuality eroded. In the 1860s, the British introduced Section 377 of the Indian Penal Code. The law imposed a fine, 10 yearsâ imprisonment or a life sentence on âwhoever voluntarily has carnal intercourse against the order of nature.â Section 377 is generally applied to sex between men, but it officially extends to anybody engaged in anal or oral sex.
Even if the Supreme Court excludes consensual sex from the law, lawyers said its archaic language means a legislative amendment is needed to protect people who are gay.â
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