(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 Delhi] had 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.
A Rainbow Pride Walk in Kolkata. Copyright: Debajyoti Chakraborty/NurPhoto via Getty Images.
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.
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)
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)
Lal Salaam: A Blog by Vinay Lal 
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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Dear Professor,
It is a shame that Section 377 of the Indian Penal Code was authored in part by Thomas Macaulay, who did such a fine job vilifying James II and Judge Jeffereys in his History of England, and whose Minute on Indian Education was so brilliantly argued. Perhaps I am guilty of presentism here, but I think this throws more shade on Macaulay’s assertion that “all the historical information which has been collected from all the books written in the Sanskrit language is less valuable than what may be found in the most paltry abridgments used at preparatory schools in England.” Also, you have included statistics from the National Crime Records Bureau regarding the arrests of educated middle class “violators,” still I wonder how many people in India (non-Indians included) were actually sentenced to life in prison since the nineteenth century simply for expressing their sexual preferences. The Supreme Court’s ruling was a great accomplishment for Indian society, and frankly, for world society.
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Dear Professor Lal,
I find the discussion of LGBT rights in India and other former colonies (especially in Africa) to be interesting because it often comes with two opposing perspectives of how Europeans affected gender and sexuality in their colonial possessions. I have seen this argument play out on the internet, on Twitter and youtube comment sections, as well as in real life. One pole of this debate claims that the gender binary, LGBT repression, and gender roles are fundamentally Western impositions. Another pole claims the opposite; that the west is trying to pollute traditional values by importing liberal ideas about gender and sexuality to the global south.
Based on lecture and our readings, it seems clear that neither of these are entirely true in the case of India. However, the British epistemological framework forcing strict categorization in religion, caste, and gender must be partially responsible for the present-day homophobia in India (beyond the legal ban on homosexuality). This made me think specifically about the Nawab of Awadh crossdressing for a play, and how baffled the British were that someone would not easily fit into their discreet categories.
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I think these were all great points! Adding on to this, some of the online posts and discussions that I’ve come across, led by some individuals from different indigenous groups, have discussed how Americans and Europeans impacted earlier indigenous communities as they encroached onto native lands by imposing their own perception on gender identities, and purposefully “othering” people who did not fit into these binary roles from within their own communities in some American Indian/Native American and Hawaiian spaces.
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You’re quite right but you may wish to give a concrete example of some Native American community where gender identities were in flux.
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No question about it that the British were wholly unable to understand the complex personality of Wajid Ali Shah, the last Nawab of Awadh, and in particular his sexual escapades as they called them–he cross-dressed, playing the role of Radha [the lover of Krishna] in plays staged at his own court–left them bewildered and, I should say, outraged.
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It’s also interesting to note that liberals cite the violence against women as a reason for diverting attention away from issue of LGBTQ+ rights in India, when much of the violence towards both communities stems from the same issues of heteronormativity, patriarchy, and rigid gender roles. Although patriarchy and gender roles are partly attributed to the cultural norms, the criminalization of homosexuality and strict adherence to heteronormativity are clear legacies of the British and the penal code that they implemented. Professor, you mention that the pace of social change is slower in the rural countryside of India – does this at all leave room for the interpretation that these villages are more accepting of homosexuality and diverse gender identities because, by being further from the metropolises, they were more insular from the rigid British imposition of heteronormativity in the first place?
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Hello Mahika, You have asked an enormously interesting question at the very end. If 19th century notions of heterosexual love (at the center of which is “the couple”, where the man plays the dominant role) were to some extent imposed on India, and village India was comparatively more insulated from Western colonialism, is that reason to believe that rural India may be more accepting of homosexuality? Not likely, many will say — especially liberals, who will be inclined to argue that to the extent that homosexuality is at all tolerated in India today, one is likely to experience that in the cities rather than the villages. I think the matter is more complex. I suspect that in rural India no one is likely to announce openly their preference for homosexuality; but, as a matter of practice, if one doesn’t make a show of it, homosexuality would be more tolerated than among city elites or the middle class.
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Ironically, the statement that the Indian Supreme Court “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” reminds me of South Africa under the rule of apartheid when the white minority population ruled over the total population, not at all relative to its size.
I found it interesting how different news reports announced the Indian Supreme Court decision and what pictures they presented. All but two display the rainbow pride flag prominently in each of their own columns. Of the two, one, however, is clearly not any less open in its obvious support, as it shows one man pecking the other on his cheek, sharing an intimate and affection gesture in a straightforward manner. I also do wonder what the headlines of groups that protested the decision had to say, and how they may have phrased it, as many conservative members in the U.S. have argued against showing LGBTQ+ couples onscreen in media afraid that they would potentially “corrupt children” and “children’s morals” as a justification.
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Dear Professor Lal,
I find it interesting that the 2009 ruling allowed for consensual homosexual relations. This is loosely similar to some of the de jure and de facto laws in late 17th century China pertaining to homosexual relations. These laws would often look into the context of the homosexual relationship, particularly in males and their rank in society. For instance, were an official to be penetrated by someone of lower ranking than themselves, there would be issue in this specific case as the ‘masculinity’ of the official would be called into question. However, there would be no repercussions were the official to play the ‘penetrator’ role in homosexual intercourse. A question arises given the length of the document reversing Section 377. Did the court go into the context of these relations where there still may be consequences? As I have said, in some cases the Chinese paid no mind to some homosexual acts given the context. Did any of these rulings in India do the same? You had mentioned bestiality was still an offense, were there any clauses that you are aware of that still barred some acts pertaining to the LGBTQ+ community?
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Hi Javier, You have raised some very interesting questions and what you say about class relations in the assessment of homosexuality in China is enormously interesting. I won’t pretend that I can really answer whether this holds true for India as I would have to delve into the literature, but I can tell you that the author of the “Kama Sutra”, the famous 2nd century text, assumed that homosexuality was more characteristic of the lower classes than the upper classes. Did it matter who was penetrating whom? Most likely it did–and still does, though I can’t say whether the legal decisions comment on any of this. Thanks for making me think more about this subject.
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Dear professor,
Section 377 of the Indian Penal Code, which is the residue of British colonies, I think the legislation to ban homosexuality is evidence that India had not still indirectly out of the influence of the British colonies. This law does not reflect existing Indian traditions or values, but rather imposes their moral values on Indian society by the ruling classes(Britain). Comprehensively, it is not only an anti-democratic law that does not guarantee the fundamental rights of minorities, but also a remnant of the British colonial era that undermines India’s traditional values. Although homosexual discrimination laws have been abolished, it is questionable whether the new legislation will efficiently affect Indians in particular, Indians living in rural areas due to the persecution of various religious groups that have long taken root and Indians who have a conservative view against them. Given that a ceremony celebrating homosexual discrimination laws has only occurred in India’s major metropolitan cities, only a small number of people in India seem to benefit from the new law. As this is the biggest reason for the problems caused by India’s various religious ideologies and inequality in education in rural areas, solving this problem will be a big challenge for Indian society. For another example, there is no law against homosexuality in Korea, but there is still strong discrimination against homosexuality in society. I think the fundamental reason for homosexual discrimination is the conservative Confucian influence deeply embedded in the ideology of Koreans. Besides, considering that many Korean religious people are Christians, it seems that LGBT was suppressed by religious ideologies, which have enormous power in public. In these senses, the conflict between the laws of the state and its long history of religion and ideology is the same problem not only in India but also in other countries, and the gap between and the rich and the poor has been formed over a long period, so it will take a long time to find a way to completely resolve this issue.
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Dear Professor,
One of my initial thoughts after reading this essay was the delay that we see with countries that were once former colonies. In this instance we see a delay from India to cut down a law that was created by the British in the 1830s, and it is not just India. We can see the lack of rights for members of the gay community in other former colonies of Britain such as those in Africa where gay rights might be viewed as a foreign concept. Although, it is fair to note that the morals that are being imposed by the ruling society in India are patriarchal so it does make sense that the 2009 ruling would be faced with certain resistance. I am curious if there was a similar situation in other former British colonies that imposed some archaic law restricting members of the gay community from being able to exercise their basic human rights?
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Dear Professor Lal,
I am glad that there is a little more liberation for the Indian LGBT community, although I must agree that there is several work to be done. This issue has concern me ever since this was a topic of discussion in one of my former cultural anthropology classes. The consequences that the Section 377 of the Indian Penal Code has left in India does not surprise me and just further clarifies the. colonization of the British. A while ago, I learned about the Hijras and could not help but relate it to the sexuality norms that exist in some of the Native American nations. I would have to say that the British’s imposing laws on society changed the future of India in every aspect such as in the culture. The Hijras for example were imperiled in British India because of such laws. Unfortunately, as you mention professor, even though homosexuality has been decriminalized in India the conflicting views between Indians will not stop in the near future.
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Dear Professor Lal,
This article reminded me of much of the sentiment surrounding the legalization of gay marriage in the United States. While it is a major step toward equalizing LGBTQIA+ persons under the law, it does not negate the fact that there are still many in this country who would oppose that minority group. The author of the article similarly remarks that, even though the Supreme Court of India has legalized homosexuality, “it cannot make people have affection for those who are deemed ‘different’.” This is an important distinction to make. However, the issue is much more nuanced than is conveyed by merely stating this fact. The major win here is that LGBTQIA+ persons can no longer be penalized under the law for engaging in consensual acts. While this win does not necessarily guarantee that LGBTQIA+ Indians will not face discrimination and hatred from those who would disapprove of their existence, the ruling does legally protect them from being targeted by police, as the article states. As a result, those who are harassed by police will be able to claim recompense under the law without this charge to protect the police who abuse them. Still, this article also brings to mind the fact that rights once given can always be taken away again. The fact that the law had to be struck down twice by the Indian Supreme Court confirms this. As such, these rulings remind readers that they must always be vigilant in protecting their rights and the rights of others.
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Dear Professor Lal,
This essay caught my attention and I enjoyed reading about how LGBTQ+ plays a role in Indian culture. I liked that you took us back and forth in different views and arguments, thus maintaining an open mind. After reading “Decriminalizing Homosexuality in India”, I think this essay showed how colonialism has shaped culture and politics. What I found interesting was when you mentioned how the Supreme Court admitted that it had “abrogated not only the privacy of LGBT people but even the fundamental rights guaranteed to them under the Constitution.” I thought it was a very true statement, a lot of people fail to see that one cannot truly be “free” if some of their rights are denied, which reminded me of the term intersectionality coined by Kimberlé Williams Crenshaw. I like that you did not diminish the victory LGBTQ+ people felt they had accomplished, but still shed some light on the privileges and the actual application of this ruling. Those in urban areas are more likely to experience more liberty and safety, however, a ruling, unfortunately, most likely cannot change (at least not immediately) the reality and sentiments toward LGBTQ+ people in rural areas. I think the point where you mention how there are far more pressing issues personally isn’t “oppression Olympics” but a critique on the government for picking and choosing an issue and making it seem like they are doing enough. This reminded me of the term “pinkwashing” which is used to distract from other issues while trying to maintain a facade of “democracy”. Overall, I agree with your views of how it could be a victory, but there is nuance to this and certain limitations to this victory.
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