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6 September 2018

Decriminalising gay sex is a huge victory. But India still faces many challenges

That a British law imposed in 1862 has been lifted is a cause for celebration. But changes will not happen overnight.

By Salil Tripathi

In 1947, India celebrated its independence. Today, 71 years on, the nation’s Supreme Court has moved the country few steps closer to freeing itself from one of the hangovers of British rule, with a ruling to legalise gay sex.

In stirring judgments, four of the five judges of India’s highest court overturned the colonial-era Section 377 of the Indian Penal Code, which described consensual same-sex relations as “against the order of nature.” By noon on 6 September, darkness had lifted over India, and there were rainbows everywhere.

The law had been Britain’s gift to the nation. Developed from recommendations made in the 1830s, it came into effect in 1862 and imposed a foreign morality on India – which did not traditionally have strong, critical views of homosexuality.

While fewer than 200 people were prosecuted under the law in the past 150 years, it provided an excuse for police to raid hotel rooms and homes – arresting consenting adults in intimate contexts. They would be beaten up and blackmailed, before being taken to police stations where bribes would be demanded, along with threats to inform their parents or relatives.

The effects were harrowing – in June this year, two women from Gujarat, who were in love with each other but married to men, plunged to their death in the Sabarmati River in Ahmedabad, along with the three-year-old daughter of one of the women.

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Today marks a celebration, but it is not the first time the law has come up for debate. In 2001, Indian NGO the Naz Foundation went to court to revoke Section 377, which was making it harder for the charity and others to reach out to those suffering from HIV and AIDS-related illnesses.

It took eight years to reach a verdict, but finally, in 2009, two judges of the Delhi High Court – A.P. Shah and S. Muralidhar – ruled that Section 377 was an affront to equality and dignity, and violated constitutional protection of life, personal liberty, and equality before law, and prohibition of discrimination.

But their judgement was challenged by religious groups, and overturned by the Supreme Court in 2013. Declaring the issue insignificant, the judges said that only “a minuscule fraction of the country” is lesbian, gay, bisexual or transgender, and pointed out that there had been few prosecutions. They instead suggested parliament could pass a new law, should it wish to do so, to remove Section 377.

Former diplomat and minister Shashi Tharoor tried valiantly to do precisely that; twice introducing a private bill in parliament, first in December 2015 and then again in March 2016 – both of which were defeated.

The Supreme Court offered another opening in August 2017, when it made the right to privacy a fundamental right. The court said that sexual orientation was part of privacy, and that discriminating against anyone on its basis was “deeply offensive to the dignity and self-worth” of the individual – adding that “the right to privacy and the protection of sexual orientation lie at the core of the fundamental rights.”

Today, the Supreme Court’s chief justice Dipak Misra, whose term ends in early October, wrote that the Section is “irrational, arbitrary and incomprehensible as it fetters the right to equality for LGBT community (which) possesses same equality as other citizens.”

Fellow justice Indu Malhotra said “History owes an apology to the LGBT community for their sufferings,” while Justice Rohinton Nariman added that homosexuality is not a mental disorder. This admission will come as a rebuke to many, including the controversial “yoga guru” Ramdev – the owner of a multibillion-rupee empire of consumer products who is close to the ruling Hindu nationalist Bharatiya Janata Party – who claims that yoga can “cure” homosexuality.

The judgment affirms the principles of freedom, dignity, and equality. It banishes the idea that homosexuality is a disorder that needs curing, and upholds the constitutional principle that all Indians are equal. 

It draws a clear line on the law, and may be used to strengthen the voices of campaigners fighting to overturn similar laws in other countries – many of which were also once colonies, but in independence still have laws in place persecuting LGBTQ communities. These may include Malaysia, where two women were caned last week; Singapore, where the court has ruled that the law outlawing same-sex relationships is valid); Uganda, where the law tyrannises gays; and Jamaica, where homophobic violence is widespread.

But for those campaigning for dignity and equality in India, this is the beginning, not the end. The road ahead is long. India will need firmer laws against harassment, bullying, and discrimination – at schools and universities, in public spaces, and at work. This is not to mention greater and equal opportunities within employment, with no discrimination at any level.

Someday, India will even allow same-sex couples who wish to marry and have children to do so, so that can everybody can enjoy their rights. Both a UN campaign and an Indian fashion brand have already produced heart-warming videos anticipating such a future.

Nonetheless, today is a matter of pride and joy, as the Supreme Court has restored dignity and aligned the state with the ideals of the Indian constitution. Societal change will take time – the police won’t change their behaviour overnight and social repression will not end soon.

On the eve of the judgment, the writer Dhrubo Jyoti noted: “This day belongs to those in the streets, those travelling hundreds of kilometres to be part of some pride, walking alone and changing in the back of a bus to go back home, to the ones who look too different… who have refused to stop loving and living, who negotiate with the police every day, who shall recede to the background and forgotten again tomorrow.”

India’s challenges now are to atone for its horrible past, to fully embrace its LGBT community, and to ensure they are always part of the Indian journey. 

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