*Decriminalizing Homosexuality in India

(in three or four parts)

Part I:  Free at Last:  A Supreme Court verdict for LGBT Identity

Thursday’s decision of the Indian Supreme Court to decriminalize homosexuality is justly being celebrated as a historic moment in the country’s modern history.  Section 377 of the Indian Penal Code, which dates back to 1860 and in its elements was drafted by a commission in the 1830s headed by none other than Thomas Macaulay, made voluntary “carnal intercourse against the order of nature with any man, woman or animal” an offence punishable “with imprisonment for life”.  The Delhi High Court in 2009 [Naz Foundation v. Government of NCT of Delhihad given the LGBT community a lease on life in ruling that Section 377 could not be applied to consensual sex between homosexuals, but on appeal to the Supreme Court the high court was reversed in 2013.  In overturning its earlier decision, the Supreme Court in Thursday’s ruling admitted that it had made an egregious mistake and, quite unusually, tendered an apology to “members of the community for the delay in ensuring their rights.”  The Court noted that, in its earlier decision, it had been swayed by the fact that only “a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders”, and had come to the false conclusion that the rights of such a minority could not be permitted to fashion the laws for an entire country.  However, the Supreme Court now holds that though a majority may be entitled to govern, it cannot abrogate the rights of a minority, whatever its numerical strength.  The Supreme Court has admitted that it had abrogated not only the right of privacy of LGBT people, but even the fundamental rights guaranteed to them under the Constitution.

RainbowPrideWalkInKolkata

A Rainbow Pride Walk in Kolkata. Copyright:  Debajyoti Chakraborty/NurPhoto via Getty Images.

LGBTCelebrationInIndia

LGBTQ community people, with a rainbow flag, celebrate the Supreme Court verdict which decriminalises consensual gay sex, in Bengaluru, Thursday, Sept 6, 2018. (PTI Photo)
Source: https://www.deccanherald.com/national/lgbtq-rights-activists-welcome-691377.html

 

The euphoria being experienced in the LGBT is understandable.  The bold headlines carried by the country’s leading newspapers on Friday tell the story in outline.  The Times of India opined that India had been “ushered into the 21st Century” and they headlined the story thus:  “Independence Day-II.”  The Hindustan Times could, however, muster little more than “Rainbow Nation”:  noting that “Justice is Served”, they characterized the Court’s decision as a “Landmark Ruling” that had been given all the more weight in that all the five justices concurred.  The Indian Express was far bolder with its headline, “Love at First Sight”, above a photograph of two well-dressed petitioners kissing on the cheek.  The Hindi-language Navbharat Times was inventive, expressing the verdict in the formula “377=0”, explaining that the court had rendered Section 377 nought. One might continue in this vein: from all the available evidence, parties had broken out across the country’s metropolitan centers.  A friend sent me an article from the South China Morning Post:  the photographs accompanying the article show men and women holding tearful celebrations as the verdict was being read out and over the course of the day.

LGBTCelebrationInMumbai

People belonging to the LGBT community celebrating after the Supreme Court’s decriminalization of consensual homosexual sex at an NGO in Mumbai, India, September 6, 2018. Photo:  Reuters.
Source:  Deccan Herald (newspaper)

 

Screen Shot 2018-09-07 at 4.05.35 PM

A portion of the judgment of Chief Justice Deepak Mishra where he quotes from the philosopher John Rawls.

 

The 495-page judgment of the Court, rendered as four different if concurring opinions, is not likely to be read by more than a few lawyers and scholars, law students, and activists, and there will be time enough to ponder over the finer points of the Court’s reasoning.  Nevertheless, there are activists who are already cognizant of the fact that the road ahead is littered with shards of glass.  Conservative elements in all the religious communities have already pronounced their opposition to the judgment but there is no element of surprise here at all.  There are a large number of people who will continue to remain hostile to members of the LGBT community; but it is also quite likely that a large number of people, whose attitude is perhaps best described as indifference, will in time come to accept the Supreme Court’s opinion as the settled law of the land.  Even among many of those who are educated, and often of liberal dispensation, the feeling persists that in a country such as India there are far more pressing issues than the elimination of Section 377—not only the threat to Fundamental Rights enshrined in the Constitution under the present political dispensation, but the crushing poverty of much of India’s countryside, the grave problem of large unemployment, the pandemic of violence against women, the suicides of over 300,000 farmers, and so on.

What is certainly striking in the coverage of the Court’s decision thus far, and in the pictures that have been posted, is that the celebrations appear to have been held entirely in urban areas, and most of those in metropolises such as Delhi, Bangalore, and Mumbai.  No one has argued that Section 377 was not without an impact in the metropolises, but the educated middle classes have, in this matter as in most others, protections which would have been denied to those with fewer privileges in life.  Prosecutions under this section have been comparatively uncommon: according to figures maintained by the National Crime Records Bureau, in 2015 fewer than 1,500 arrests were made.  One cannot minimize the immense psychological hold that Section 377 had over large segments of the LGBT community, giving rise to fear and silence on their part and, conversely, emboldening not only a largely corrupt police but many who sought to blackmail LGBT people.  At the same time, we shall have to ask how, and in what respect, the abolition of the most egregious portions of Section 377 impacts rural India where half of the country still lives.  In raising this question, I am not at all adverting to the common liberal view that the countryside is more conservative and therefore less progressive.  If by conservative one means, for example, that the pace of social change in the countryside is slower, than that is doubtless true of India’s hundreds of thousands of villages; however, the same countryside has, mercifully, been much less prone to accept the communal narratives of the Indian past which are now destroying India, though the extremist Hindus who are these days accustomed to acting with impunity are doing everything to communalize the country’s rural populations.  What is most pertinent is that in rural India one cannot quite escape one’s identity:  a person may proclaim herself a Christian or a lesbian one day, but those identities do not become accepted merely because they have been affirmed.  Above all this is of course the consideration, common to every part of the country, that the law can outlaw certain forms of discrimination, as the Supreme Court has now wisely done in holding Section 377 (except with respect to the provisions about the unlawfulness of bestiality, or sex between a human and an animal) contrary to the Constitution, but it cannot make people have affection for those who are deemed ‘different’.

(to be continued)

 

 

 

 

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1 thought on “*Decriminalizing Homosexuality in India

  1. Dear Professor Lal,

    I find it fascinating that you have titled your post ‘Free at Last’–an expression made popular by Martin Luther King, Jr. One does not know if, like the reverend, our friends in the LGBT+ community would “Thank God Almighty” for the belated but wise decision of the Supreme Court of India. On the day of the favourable judgement, I updated my Facebook with a status remembering Edward Carpenter–friend to both Rabindranath Tagore and Mohandas Gandhi (the latter one cannot but mention in any consequential discussion about King, Jr.). One does not wish to make a chronological error but Carpenter may be seen as a proto-LGBT+ rights advocate. Homophilia rather than homophobia was what he was a witness to in late 19th century Ceylon. Similar accounts have been recorded by others in other formerly colonised and not-so-colonised (I am thinking of Iran here) parts of the world. Among the many gifts that European elites came to heap on us in the tricontinent, homophobia–regardless of the verdict of the court–continues to betray unfortunate obstinacy. Constitutional morality is one thing but “hav[ing] affection for those who are deemed ‘different'” calls for a kind of compassion, kinship, and, perhaps, re-education that the modern condition tends to throw cold water on.

    Arko

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