Through My Brown Gay Lens: LGBTQ+ rights in India and the death of Section 377

In
2010, a Delhi (India) High Court decision suddenly raised hopes in the hearts
of millions around a subcontinent that now boasts over 1 billion people. If
popularly held statistics are anything to go by, then India should have around
100 million LGBTQ+ people. The Delhi High Court ruled that the law which is
part of the Indian Criminal Code, a law that was handed down by the British in
1860 when India was a colony of the British Empire, was unlawful and against
the principle of right to Life and Liberty guaranteed by the Indian
Constitution. The section of the Criminal Code: 377 read that ‘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 a fine.’

People
began cautiously celebrating, thinking that this High Court judgement would be
emulated by other courts and soon LGBTQ+ rights would have the front and centre
place that they deserve in the social discourse in India.

2013 came along and the matter had since been appealed to the Supreme Court of India. The Supreme Court opined on the Delhi High Court ruling and decided that Section 377 was valid and should stay in the Criminal Code. The Supreme Court said that in the event the law had to be changed, it would be parliament’s responsibility to do so. Knowing how the Indian parliament functions and how work never gets done (typical of Westminster style legislatures around the world), I knew that on one in the Indian political class had the will or the desire to change the law. The political class being a mix of self-appointed right-wing custodians of Indian morality and the remaining a mishmash of upper-class bourgeois elite. Also, Indian society has a lot of work still to do to get to a place of open-minded acceptance of anything LGBTQ+.

The 2013 decision really set the LGBTQ+ movement back many years. All gains that had been made since 2010 were stalled. Real life stories that I have heard spoke of fear re-taking its place within the community. The primary problem with Section 377 and its application was that it was used to harass gay people as being gay or engaging in gay activities was deemed criminal. Harassment, extortion and even violence had been faced by people across social classes, regions and even generations. A valiant attempt was made a couple of years ago, when filmmaker Hansal Mehta made a film titled Aligarh, which was  based on the real-life story of a university Professor Srinivas Ramchandra Siras, who was harassed by the police and forced to commit suicide, as he was filmed in a ‘compromising position’ with another man and that video was made public to shame him. The harassment became so severe that Professor Siras ended his misery with his life.

2014
came and the country voted in a Hindu nationalist government under Narendra
Modi. Modi’s political party the Bharatiya Janata Party (BJP) and its political
mentor organization have held the view that homosexuality was against Indian
culture, it was a creation of the West and must be kept away from India. So
obviously nothing would be done legislatively to change the law. The government
was happy that it didn’t have to deal with the issue and the Supreme Court had
reaffirmed the status quo. But activism is certainly not about giving up.

The
decision of the Supreme Court from 2013 ended up being appealed again and this
time to a Constitutional Bench of five judges in the Supreme Court of India,
who were going to hear the matter on Section 377 and its legality. The idea was
to have the Supreme Court determine once and for all what the law was on 377.

As
the country (well not all of the country) waited with bated breath, the Supreme
Court of India did not disappoint. I woke up in the morning of September 6th
in North America and as I poured through the four hundred and ninety pages of
the Court’s poetic judgement, I couldn’t contain my tears. Having grown up in a
small town in North India as a closeted, hidden young gay person, I couldn’t
believe it that after over 160 years, the country of my birth had suddenly
given my identity its legal validity. The five judges were unanimous (four men
and one woman) as they struck down Section 377 as violative of the fundamental
right to Life and Liberty. Section 377 and the criminalization of ‘gay sex’ was
relegated to the confines of history.

There is nothing to suggest that the government won’t in their infinite moral wisdom come out and bring legislation to trample on people’s rights and somehow try to reverse this. However, the highest court of the land has spoken, and it will take a lot of defiance and risk on the part of an elected government, facing an election year in the Summer of 2019, to get into a legal battle with both the LGBTQ+ community and its image of a ‘tolerant and open minded’ government.

Obviously,
we don’t live in an ideal world and a court’s words only go as far. India is a
deeply religious country, where gender roles are clearly defined, misogyny is
rampant, and patriarchy is a way of life. I am not deluded to think that the
day after September 6th, India will be a different country. The law
has empowered people, given them the right to claim equality, the society’s
work has only just begun.

In my last trip to my country of birth, I realized for the first time that social reform movements have their own pace and trajectory, given the historical context, social engineering and a whole multitude of reasons that affect the society where they are taking form. My own politics around LGBTQ+ rights has moved on to issues that are not occupying the social spaces my peers in India inhabit. This realization also came with a sense of humility that there is so much more that needs to be done, before we can imagine a world that is more equal and freer. So, the battle has now moved from the hallways of a court to corridors of homes, common areas of small towns, villages, cities, and even workplaces. As we take on this new challenge as a collective, the opening words of Johann Goethe in the Supreme Court of India’s judgement delivered earlier this month ring true and summarize the true spirt of all of us, humans, who inhabit this planet with other like humans: “I am what I am, so take me as I am.”

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