Pride Trumps Prejudice: India's Gay Sex Ban Is No More

In a historic judgment, the world’s biggest democracy scrapped Section 377 of the Indian Penal Code, an antediluvian provision that criminalized private consensual sexual acts between same sex adults.

On September 6, a five-judge bench of the Supreme Court ruled that the 160-year-old law banning same sex intercourse is unconstitutional and amounted to discrimination on the basis of sexual orientation. “Section 377 IPC is irrational, indefensible, and arbitrary. The sexual orientation of each individual in the society must be protected on an even platform, for the right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution,” the 493-page judgment read.

Chief Justice of India Dipak Misra, one of the five judges who delivered the verdict, added that “Social exclusion, identity seclusion and isolation from the social mainstream are still the stark realities faced by individuals today and it is only when each and every individual is liberated from the shackles of such bondage… that we can call ourselves a truly free society.”

In an unprecedented gesture, Indu Malhotra, another judge on the bench, added that history “owes an apology” to members of the community for the delay in ensuring their rights.

The abolition of Section 377 not only decriminalizes same sex intercourse, but rules that LGBT citizens will enjoy the protections of the constitution — marking the culmination of a long struggle by India’s LGBT community to get fair treatment under Indian law.

The judgment came after an array of petitions filed over decades by several individuals and organizations seeking the scrapping of the antiquated law. The historic verdict also upends a 2013 order of the apex court that restored the validity of Section 377 after the Delhi high court had scrapped it in 2009.

Celebrations erupted across the country as the verdict was delivered. Many proclaimed it upheld India’s constitutional democracy. “With these four judgments, the Supreme Court [SC] has fulfilled some of the many promises of India’s radical and reparative constitution for LGBT Indians who had been left out of its embrace for long,” noted lawyer Menaka Guruswamy, who represented multiple petitioners in the case against Section 377, in an article. “By doing so, the SC also upended what it had done in 2013 when a smaller panel of judges upheld the constitutionality of the now infamous colonial-era unnatural sex penal provision,”

“Historical judgment!!!! So proud today! Decriminalising homosexuality and abolishing #Section377 is a huge thumbs up for humanity and equal rights! The country gets its oxygen back!” renowned filmmaker Karan Johar tweeted.

“I could not stop weeping when the judgment was pronounced,” said Delhi-based theater artist Miraj Sharma, who identifies as gay. “The tears wouldn’t stop flowing because it was a catharsis, a release from years and years of hurt and humiliation that I’d gone through… I had to let it out.”

Experts say given India’s size, influence, and history, the significance of the judgment is staggering and will resonate across the world. The country hosts one of the world’s largest gay populations, a demographic that has suffered under skewed laws and harassment by authorities for decades. The fight against Section 377 had mobilized scores of activists, penetrated popular culture, and stirred public discussions and debates due to its fraught nature.

The law had become a weapon in the hands of those exploiting the rule for the harassment and discrimination of the LGBT community. And although prosecutions under Section 377 have been rare, it is frequently used to blackmail gay and lesbian Indians and contributes to their marginalization, while also scuppering efforts to combat diseases such as HIV/AIDS.

According to LGBT group the Humsafar Trust (HST), Section 377 of the IPC was used to extort and blackmail the community. A survey by the organization highlights that between 2016–2018, the HST’s crisis response team attended to 83 cases in Mumbai. Of these 83, six cases involved an adult, homosexual male being blackmailed by the police under fear of Section 377. In 12 cases, adult, homosexual men were threatened by a false accusation under Section 377 and were victims of extortion by ordinary people, who sometimes demanded up to 100,000 Indian rupees (roughly $1,400).

An online survey conducted by the HST involving gay men and transgender persons revealed that around 57 percent had been subject to the fear and misuse of law under Section 377 at least once in their lifetime in varying degrees, with 37 percent having experienced victimization within the last 12 months at the time of the survey.

Interestingly, though the verdict has united civil society, the political class is splintered on the issue. While the opposition Congress Party hailed the judgment on its official Twitter handle, the Rashtriya Swayamsevak Sangh (RSS), the ideological arm of the ruling Bharatiya Janata Party (BJP), had reservations about it. “Same-sex marriages are not compatible with norms of nature, so we don’t support them. Bharatiya (Indian) society doesn’t have the tradition of recognizing such relations,” said RSS spokesperson Arun Kumar.

Political observers feel that Section 377 presents a classic conundrum for Prime Minister Narendra Modi’s Hindu nationalist government. Though keen to project an image of India as a modern liberal democracy, the Modi government is thwarted by the regressive thinking of a section which feels homosexuality is incongruous with the party’s vision of a “cultured” India.

Apart from a change in the mindsets of politicians, sweeping legislative changes will also be needed to ensure that the country’s LGBT community finally gets all the rights guaranteed to other citizens. Naz India Foundation, a nonprofit, has argued that the law forced the community to go underground and not get much needed public health intervention benefits for fear of ostracism.

“The oppression that fuels the ostracism of the LGBTQ demographic is due to a host of laws heavily tilted against them. Though same sex couples can live in and even adopt, their marriage and succession rights need to be addressed,” says Aviva Mukherjee, advocate, High Court.

Mukherjee points out that due to the discriminatory law, many couples from the LGBT community tie the knot in community ceremonies while some others migrate to countries that are more empathetic toward same-sex marriages.

While the judiciary has delivered a hard blow to laws against homosexuality, activists say the uphill battle will begin now. Change will be painfully slow in coming also because in a conservative country like India a stigma is still attached to being LGBT.

Some Indian families would rather that such members remain silent about their sexuality and relationships rather than acknowledge them publicly and “shame” the family. The situation is worse for marginalized communities like Dalits, Scheduled Castes and Scheduled Tribes, and women who suffer from a double whammy of being identified as minorities and the “weaker sex” respectively as well.

Ashok Row Kavi, co-founder of the NGO Humsafar Trust and one of the petitioners in the case, observes that the issues that need real work are marriage rights, inheritance laws, civil partnership rights, adoption rights, sex education, as well as the mental and sexual health of the LGBT community.

However, hope floats that acceptance of LGBT people will slowly increase in India. Already, popular culture reflects this with the portrayal of a number of openly gay characters on television, in movies, and in the theater.

But this is clearly not enough. Members of the marginalized community, which has for decades borne the brunt of unjust laws and prejudiced mindsets, will need to be embraced fully and integrated into society as respected and dignified individuals. Only then will India be truly deserving of the title of the world’s largest democracy.