Utsa Mukherjee
6th September 2018 will go down the annals of history as a watershed moment for India and for the global queer rights movement with the Supreme Court of India decriminalising homosexual acts between consenting adults in a landmark ruling. This verdict is but the first step towards securing the rights of LGBTQ Indians, and is being celebrated across India and its diaspora.
The law criminalising same-sex sexual acts in India has a long history going back to India’s colonial past. The law was enshrined in Section 377 of the Indian Penal Code (IPC), authored under the chairmanship of Lord Macaulay, which came into force in 1860 when India was a British colony. Section 377 reads thus: “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.” Though the section does not explicitly mention homosexuality, the phrase ‘carnal intercourse against the order of nature’ refers to non-normative and non-reproductive sexual acts (i.e. sexual acts other than penile-vaginal intercourse) which includes same-sex sexual acts. The general thrust of this law derives from England’s Buggery Act of 1533, enacted during the reign of Henry VIII.
This colonial era anti-sodomy law in India became the basis for the persecution and ostracism of queer communities in the country, with police oppression and everyday violence going unaddressed as LGBTQ Indians feared being themselves booked under Section 377 if they are to report such matters to the authorities. It also became the basis to deny LGBTQ Indians access to AIDS prevention programmes, and a range of other rights. What the Supreme Court in its ruling has done, is to proclaim that Section 377 will cease to apply to the LGBTQ population. By doing so, the Apex Court has taken a step towards decolonising sexuality and its regulation in India. The colonial desire of controlling and regulating the bodies of the colonised population, was institutionalised and codified through laws like these and taking them off the books is a welcome step in undoing entrenched colonial violence.
But it will be oversimplifying the case to argue that homosexuality and gender fluidity had a pride of place in pre-colonial India, only to be repressed by colonial intervention. Forms of non-normative sexualities and gender expressions flourished in different pockets in pre-colonial India from time to time, and there exists textual evidences for the same, but it was never universally celebrated by all sections and in every period. What colonial legal frameworks did was to compartmentalise and codify these sexual and gender diversities – often residing in the margins – into then prevalent western categories and criminalise them in unprecedented ways.
Though resistance to this law is as old as the law itself, the legal fight against this draconian colonial-era law began several decades ago. One of the first organised movements was led by the Delhi-based organisation AIDS Bhedbhav Virodhi Andolan (ABVA), roughly translated as ‘Movement to Protest AIDS Discrimination’. The ABVA published a manifesto called “Less Than Gay” in 1991, demanding for Section 377 to be struck down and the rights of LGBTQ Indians to be recognised. It was ABVA which led the first legal challenge against Section 377 at the Delhi High Court in 1994, but the group itself disbanded before the petition came up for hearing. In more recent times, an NGO called Naz Foundation filed a writ petition in the Delhi High Court questioning the constitutional validity of Section 377 and after years of delay the High Court in 2009 found that the section infringes upon key rights guaranteed by the constitution and therefore read it down. This ruling was challenged in the Supreme Court, the highest court in the country, and in 2013 it overruled the Delhi High Court’s 2009 verdict and reinstated Section 377 and re-criminalised consensual sexual acts between adults of the same sex on the grounds that LGBTs constitute a “miniscule fraction” of the country’s population and that less than 200 people have been prosecuted under Section 377. It is therefore in this context, that the September 2018 ruling must be understood.
The recent verdict by the top court, however, goes beyond just decriminalising sexual acts between consenting adults of the same sex. The judgement is not only comprehensive, it goes into great detail about various legal and sociological implications of Section 377 and is worth reading in its own right. Its observations have deeper implications for contemporary Indian society. It begins by quoting Goethe’s “I am what I am, so take me as I am” as a launchpad to set out the larger questions at stake.
While delivering the verdict, the Chief Justice of India remarked that majoritarian views and popular morality cannot dictate constitutional rights, and the court has therefore implored the Central Government to publicise the judgement with a view to eradicating the stigma attached to the queer population. Quoting from John Stuart Mill to Shakespeare, from the Wolfenden Report to Leonard Cohen’s song “Democracy”, the judgement offers a point to point rebuttal to a range of popular queerphobic arguments, locating the rights of LGBT populations in the constitution and not in majoritarian ideas of morality.
A number of these arguments can find resonance in many postcolonial countries still bearing the relics of colonial era anti-sodomy laws. But it will be erroneous to believe that all postcolonial countries will follow a similar trajectory, for local socio-political scenarios differ and queer movements take varying shapes in different contexts. In India, the change in law marks but the first step towards wider legal reforms to secure the rights of LGBTQ people, such as anti-discrimination laws, adoption and marriage equality, making sexual and mental healthcare inclusive, outlawing harassment on the ground of sexuality and gender expression in schools and workplaces, amending inheritance laws and many others. The battle therefore continues, as grassroots queer activists take heart from the constitutional support that they have won through continual campaigns and struggles. We must recognise that the decriminalisation of homosexuality in India has been achieved from the ground below, not simply bestowed from the top above. This verdict has been put into perspective extremely well by the Supreme Court judge Justice Indu Mahotra, who was part of the five-member constitution bench that delivered the verdict, as she said in court:
“History owes an apology to the members of this [LGBTQ] community and their families, for the delay in providing redress for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution.”
The change in law therefore sparks new hope for millions of queer Indians that ostracism and persecution with the acquiescence of the state and the judiciary will come to an end and a new chapter will begin in India’s queer movements.
Utsa Mukherjee is a PhD candidate in Sociology at Royal Holloway, University of London. His doctoral research looks into leisure practices and identities of British Indian children in the UK. His other research interests include cultural studies, postcolonial theory, and critical sexuality studies. He tweets at @utsa_mukherjee