World

The Historic Victory for Gay Rights in India Was Long Overdue—And Just the Beginning

The Indian Supreme Court ruled the criminalization of gay sex unconstitutional—but there are more hurdles to freedom for the LGBTQ community.

Photo Credit: Jesse Rapczak, Flickr, Creative Commons

On September 6, 2018, India gained a second freedom from colonial rule. Having gained political freedom from the British on August 15, 1947, the country adopted a Constitution guaranteeing certain basic rights and freedoms to all citizens, on paper. In reality a section of its citizens had remained un-free till now. The Victorian-era morality that the colonial masters imposed in the land of the Kama Sutra outlived the colonial regime, surviving as section 377 of the Indian Penal Code (IPC), 1860, which stipulated:

“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 a 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 offence described in this section.”

Thus, consensual gay sex was lumped together with bestiality as “unnatural offences,” both considered crimes as serious as non-consensual pedophilia and rape; all punishable with long years in jail. It is this section of the IPC that has been read down by a five-member constitutional bench of the Supreme Court of India on September 6 decriminalizing consensual gay sex between adults in private. Bestiality, pedophilia and rape remain a crime, with new stringent laws now in place for the latter two offenses.

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More significantly still, the Supreme Court of India displayed both wisdom and prowess, since its own ruling of 2013 had re-criminalized this section that had been earlier de-criminalized by a Delhi High Court ruling of 2009. As we pointed out on cjp.org, “Overruling the judgement in the Suresh Kumar Koushal case, the court said, ‘Section 377 of IPC insofar as it criminalises consensual sexual acts between man and man, man and woman or woman and woman is unconstitutional and struck down. Sex with animals will however remain criminal.’”

The response of India’s LGBTQIA community to the judgment could well be summed up in the few simple words uttered by LGBT activist Arif Jafar, who told the Indian Express: “I am not a criminal anymore.” Even as liberals across the country welcomed the “historic verdict” of the highest court in the land, jubilant members of the LGBTQ community came out in the open, singing, dancing, splashing rainbows on the streets.

The Times of India, the largest circulating English daily in the world, was ecstatic. “Independence Day – II” read the banner front-page headline in its print editions the next morning. The text above the headline read:

“On 6/9/2018 at 12.25 p.m. the Supreme Court ushered India into the 21st century. With one stroke of judicial wisdom, the court flung the 1860 colonial law that criminalised homosexuality into the dustbin of history and wrote a new freedom song for lakhs of members of the LGBT community. Freedom to love anyone. Freedom from fear of persecution. Freedom to just be who you are. There are still many stern battles to be fought and won for LGBT rights. For the moment though, let’s relish this milestone moment in India’s journey to being a modern, liberal, caring state.”

The global media too hailed the landmark ruling, noting that this “groundbreaking victory” (New York Times) for gay rights in India will have a spread effect across countries and cultures. Until the Supreme Court “read down” section 377, India was one among 72 countries that treat same-sex relations as a crime: in eight of them it can lead to a death penalty. India is now set to join 124 other countries where such relations are legal.

Four concurring but separate judgments running cumulatively to nearly 500 pages were unanimous in ruling that criminalization of consensual gay sex was “arbitrary, retrograde and indefensible.” But each of the judgments was a valentine for same-sex love in its own right.

“History owes an apology to the members of the [LGBTQIA] community and their families, for the delay in providing redressal for the ignominy and ostracism they have suffered,” observed Justice Indu Malhotra. Truth to tell, the Supreme Court itself owed an apology for its own role in delaying justice to the gay community. In 2009, the Delhi High Court ruled that criminalizing gay sex violated the rights to equality (Article 14) and privacy/liberty (Article 21) guaranteed by the Indian Constitution. But in 2013 a two-judge bench of the apex court overruled the high court’s order. Now, on September 6, the five-judge constitution bench has more than redeemed itself, and those grumbling are not the members of the gay community but the conservative religious right across the board: Hindu, Muslim, Christian.

Questioning the Supreme Court’s earlier ruling of 2013, the joint order of Chief Justice of India Dipak Misra and Justice A.M. Khanwilkar observed: “Constitutional morality embraces within its sphere several virtues, foremost of them being the espousal of a pluralistic and inclusive society. The concept of constitutional morality urges the organs of the state to preserve the heterogeneous nature of society and to curb any attempt by the majority to usurp the rights and freedoms of a smaller or a miniscule section of the populace.” The entire SC Judgment may be read here. It added, “When the liberty of even a single person of society is smothered under some vague and archival stipulation that it is against the order of nature or under the perception that the majority population is peeved when such individual exercises his/her liberty... then the signature of life melts and... resultantly the fundamental right of liberty of such an individual is abridged.”

In his separate order, Justice Rohinton F. Nariman opined: “Morality and criminality are not co-extensive—sin is not punishable on earth by courts set up by the state, but elsewhere; crime alone is punishable on earth... The object sought to be achieved by the provision [section 377], namely to enforce Victorian mores upon the citizenry of India, would be out of tune with the march of constitutional events…”

In a clear pointer to what lies ahead, Justice D.Y. Chandrachud observed in his order: “Decriminalisation is, of course, necessary to bury the ghost of morality... But it is a first step. The constitutional principles on which this is based have application to a broader range of entitlements... In the march of civilisations across the spectrum of a compassionate global order, India cannot be left behind.”

For the LGBTQIA community in particular and the community of human rights defenders in general, the big takeaway from the apex court’s order is the ruling that majoritarian concerns or social morality cannot trump constitutional morality. The principle that holds true for sexual minorities must hold true for other minorities as well: religious, ethnic, linguistic...

So what’s next? Right to non-discrimination in employment? Civil union if not the right to same-sex marriage? Inheritance rights? Adoption rights?

Even as the gay community basks in the glory of its recently won right and fantasizes over what comes next, LGBTQIA activists who took the battle to the courts and the team of lawyers who defended them are well aware of the long road that lies ahead.

Commenting on the verdict, Markandey Katju, a former judge of the Supreme Court, cautions, “Law and morality are different issues. Our legislatures may frame laws or courts deliver judgments that are ahead of the moral values of a society. But it would be far-fetched to expect that moral values can be changed because of court judgments.” The apex court’s verdict notwithstanding, far too many Indians will continue to see homosexuality as “unnatural,” immoral, revolting and disgusting.

It is no small matter that an LGBT person need not fear the police; the law is on her/his side. But changing the mindsets within society, wiping off the widespread social stigma attached to homosexuality will take time. As one wit wryly commented through a tweet: “@llum comic Wohoo! Section 377 has been quashed. Now all Indians can love people of any gender from their caste #Section 377.” That’s a sarcastic way of suggesting that a society in which the overwhelming majority of men will not marry outside their own caste will take a long time before it will find its comfort with same-sex relations.

Indian society remains a highly tradition and religion-bound society. Needless to add, the religious right across faith is fiercely opposed to homosexuality. Given this reality, political parties with the exception of the communist parties measure their words carefully when it comes to same-sex relations. Consider, for example, their response to the verdict of the Supreme Court. The Congress Party, the Left Parties and several others were quick in welcoming the decriminalization of consensual gay sex. But the supremacist, right-wing Bharatiya Janata Party (BJP), which is in power at the Center and 20 states (on its own or as part of a coalition), chose to stay mum. In the course of hearing of the petition on Section 377, when asked to file its response, the BJP-led Union government took the “safe” option. It was happy to leave the matter to the “wisdom” of the Supreme Court, provided the justices limited their concerns to the “reading down” of section 377 and not entertain other issues concerning equal rights of the LGBTQIA community.

The BJP’s wishy-washy stance on the issue of gay rights is not surprising considering the highly conservative social ethos of its parent body, the right-wing Rashtriya Swayamsevak Sangh (RSS). Responding to the judgment, a statement issued by the RSS said: “Like the Supreme Court verdict, we also don’t consider this (homosexuality) a crime. Same-sex marriages and relations are not in consonance with nature, and so we do not support such relations. Traditionally, Indian society has not supported such relations. Ordinarily, people learn from experience, and so this issue needs to [be] handled at a social and psychological level.

Hindu, Muslim and Christian groups—including Sanatan Dharam Pratinidhi Sabha, a member of the Vishwa Hindu Parishad, the All India Muslim Personal Law Board, Raza Academy, Utkal Christian Council and the Apostolic Churches Alliance—were among the litigants in the apex court who opposed the decriminalization of homosexuality.

Post the Supreme Court’s verdict, the Hindu Mahasabha lamented that homosexuality will “destroy Indian values” while the clerics from the well-known Deoband center of Islamic learning said it was against Islam. Said Maulana Mahmood Madani, general secretary of the Jamiat Ulema-e-Hind, the largest organized body of Muslim clerics in India, while speaking to the Indian Express: “Homosexuality is against the law of nature. It will lead to moral decay and disorder in the society and will increase sexual crimes and violence as we are witnessing daily. This shameful act will destroy the family system and will have a cascading effect on the progress of human race.” Madani also pointed out that every divine book has described homosexuality as an “unnatural act.” The same report in the Indian Express quoted Kamal Farooqui, a lawyer and member of the All India Muslim Personal Law Board, as saying that the board might appeal against the verdict of the constitutional bench. “I want to make it very clear that homosexuality is against Islam and there is a whole chapter in the Qur’an about this,” said Farooqui.

Some among the Hindu right too have fantasies about the Supreme Court overturning its September 6 verdict at some point. In an interview to the news channel News 18, BJP leader Subramanian Swamy opined: “The decision of a two-judge bench has been overturned by a five-judge bench. If this freedom leads to excesses, including paedophilia, gay bars, increase in HIV cases, etc., we can have a seven-judge bench to overturn this. There is no finality to the Supreme Court’s judgment today.

As the editorial comment (quoted above) that prefaced the lead story in the Times of India rightly noted, “There are still many stern battles to be fought and won for LGBT rights.” Having conceded that, “For the moment ... let’s relish this milestone moment in India’s journey to being a modern, liberal, caring state.”

This article was produced by the Independent Media Institute.

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Teesta Setalvad is a writer, activist, and journalist living in India. She is also the secretary of Citizens for Justice & Peace and a writing fellow for the Independent Media Institute