How Section 377 stood as a Panopticon viewing LGBT individuals as criminals

[Ajita Banerjie is a research consultant with the International Commission of Jurists, based in India.]

In a historic judgment pronounced on 6^th September 2018, the Supreme Court of India declared the 157-year-old law, Section 377 of the Indian Penal Code, unconstitutional in so far as it criminalizes consensual sexual relationships between same-sex adults.

The landmark judgment in Navtej Singh Johar vs Union of India seeks to atone for the judicial wrong done in Suresh Kumar Koushal v. Naz Foundation, which in December 2013, had overruled Naz Foundation v. NCT Delhi, 2009, and re-criminalized same-sex relationships in India.

The Court noted that

“Citizens of a democracy cannot be compelled to have their lives pushed into obscurity by an oppressive colonial legislation,” by recognizing that Section 377 alters the prism through which LGBTQI individuals are viewed and perpetuates a culture of hatred and prejudice against them.

In India, the effect of criminal sanctions against LGBTQI individuals range from discrimination in access to education, employment and healthcare to sexual violence, custodial torture and threat to life. Archaic ‘sodomy’ laws such Section 377, interact with other forms of societal censure to produce a climate of oppression and perpetuate stigma around non-normative gender and sexual identities.

This ‘chilling effect’ of Section 377 on the lives of LGBTQI individuals has had the same impact as the Panopticon, which, as Foucault explains, induces in the subject

“a state of conscious and permanent visibility that assures the automatic functioning of power.”

The judgment in Navtej has duly noted that the state’s relationship with LGBTQI individuals under a regime of ‘sodomy’ laws, as Ryan Goodman argues, constructs a similar structure of surveillance, viewing LGBTQI individuals as socially and legally constructed miscreants.

This was evident in the first case registered under Section 377 in India in Queen Empress v Khairati, 1884, which was initiated suo moto by the police, without a complaint, against Khairati, who was arrested for cross-dressing and singing with a group of women in her village. The accused, found to be a “habitual sodomite” upon medical examination, was eventually acquitted but the police was commended for keeping such “disgusting practices” in check.

Ostensibly a neutral law that criminalized “unnatural” sexual acts and not identities, in its operation, Section 377 targeted the LGBTQI community, persecuting them based on who they are or what they are perceived to be, and not because of what they do.

In the landmark judgment in NALSA vs Union of India, 2014, affirming the rights of transgender persons in India, the Supreme Court had duly noted,

“Section 377, though associated with specific sexual acts…was used as an instrument of harassment and physical abuse against Hijras and transgender persons.”

A report published by the International Commission of Jurists notes a wide range of human rights violations committed against LGBTQI persons in India, under section 377 along with some vaguely worded laws, such as those regulating sex work, begging, public nuisance and obscenity, that allow law enforcement officials to misuse their authority and persecute people based on their sexual orientation and gender identity.

In January 2018, in the state of Kerala, a group of 6 transgender women were arrested under the allegation of running an online sex racket, and were charged under the Immoral Trafficking (Prevention) Act and Section 377. On November 3, 2015 in the state of Karnataka, the single largest arrest was made under Section 377 when the police arrested 13 gay men overnight on false charges and subjected them to harassment and custodial torture. In the same state, a week after the Navtej judgment, a group of individuals from the Cubbon Park Walkers Association filed a police complaint seeking legal action against ‘homosexuals’ alleging that they have been indulging in illegal activities in the park and instigating other men to take part in ‘immoral’ activities.

The stigma around non-normative sexuality and ‘vagrancy’ has existed since the Colonial era, when the British introduced discriminatory laws such as the Criminal Tribes Act, 1871 which provided powers to the police to arrest without warrant nomadic tribes and transgender persons who were found dancing, playing music or taking part in any public exhibition, in a public street. Thus, every aspect of their existence was subject to surveillance, premised on the threat of criminal action. The colonial moral panics around ‘vagrants’ were imported into post-colonial India through laws that govern beggary, pubic nuisance and public obscenity.

Anti-beggary laws in India, for instance, allow the police to arrest without a warrant; they disproportionately impact the livelihood of transgender persons who often rely on begging or seeking alms through traditional practices of singing and dancing. Under the Bombay Prevention of Begging Act, 1959, various forms of begging are criminalized, including

“soliciting or receiving alms, in a public place, whether or not under any pretence such as singing, dancing, fortune telling, performing or offering any article for sale.”

The Act also considers persons “having no visible means of subsistence and wandering about” as likely to be begging or soliciting and allows for arrest of such persons.

Certain other provisions in the Indian Penal Code, such as section 290 and 294, effectively allow arrest of any individual who “sings, recites or utters any obscene song, ballad or words” or causes “annoyance of others” or does “any obscene act in any public place”.

The State’s intent to curb transgender persons’ access to public spaces was made clear when the Karnataka Police Act was amended in 2011 to include a section 36A, titled “Power to regulate eunuchs,” effectively providing unfettered power to the police commissioner to arrest, harass and abuse transgender persons in any public space. Following this, in a horrific crackdown on transgender persons, the Bangalore police arrested, without warrant, more than 200 transgender persons under various charges such as begging and public nuisance and detained them in a beggars’ colony.

The impact of Section 377 has not been limited to prohibition of a form of intimate choice and expression, but that it has encoded a stereotypical morality of what is ‘against the order of nature’, thereby reducing a whole class of LGBTQI persons to the status of “un-apprehended felons”, unworthy of social acceptance and legal protection. While Section 377 did not sanction discriminatory behavior, the mere existence of the provision perpetuated negative stereotypes about the LGBTQI community that detrimentally affected their enjoyment, exercise and recognition of civil and political as well as well as economic, social and cultural rights.

Navtej duly notes that Section 377, when read on the anvil of Article 19(1)(a) of the Indian Constitution,

“amounts to an unreasonable restriction, for public decency and morality cannot be amplified beyond a rational or logical limit and cannot be accepted as reasonable grounds for curbing the fundamental rights of freedom of expression and choice of the LGBT community.”

The constitutional right to privacy accorded in Justice K. S. Puttaswamy vs Union Of India is not only about granting protection to sexual acts and sexual expression behind closed doors, but must extend to public spaces as well, where LGBTQI persons are most vulnerable on account of the deep rooted hatred and prejudice against their real or perceived gender identity, expression, sexual orientation or occupation.

Constitutional jurisprudence must recognize that the public assertion of one’s identity, includes one’s sexual orientation, which, in turn, is crucial to the exercise of fundamental rights. As Chandrachud J. notes,

“It must be acknowledged that members belonging to sexual minorities are often subjected to harassment in public spaces. The right to sexual privacy, founded on the right to autonomy of a free individual, must capture the right of persons of the community to navigate public places on their own terms, free from state interference.”