India: ‘History Owes An Apology’

Homosexuality is no longer a crime in India. It took 157 years to overturn but on 6 September the supreme court unanimously struck down the colonial-era criminalisation of gay sex in an historic ruling that was greeted with joy by the LGBT community in India.

The unanimous decision by the five judges throwing out most of section 377 of the 1861 penal code, which made ‘carnal intercourse against the order of nature with any man, woman or animal’ punishable by life imprisonment, is the culmination of a decades-long battle, led first by a few non-governmental organisations but latterly by a few brave petitioners. As long as homosexuality was illegal, gay and lesbian Indians faced extortion and blackmail, forced marriages, ‘corrective rape’, violence, harassment and rejection by their families. One activist in Lucknow estimated that 40% of LGBT people killed themselves. Among the petitioners were a well-known classical dancer Navtej Johar and his journalist partner Sunil Mehra. Johar told the Guardian that they finally decided to become two faces of the campaign ‘for all those who didn’t have our class privileges, education, intellect, money and connections to insulate them … so these other lives could be lived in the sun, rather than in burrowed, dark spaces.’ Their campaign challenged  ingrained cultural prejudice and hostility from the Hindu nationalist bloc, led by the Bharatiya Janata party (BJP) government and its ideological mentor, the Rashtriya Swayamsevak Sangh (RSS), as well as other other religious groups.

The ruling lifts the threat of being ‘unconvicted felons’, as one appellate lawyer put it, from many millions of Indians. In 2012 government lawyers told the supreme court there were only 2.5 million homosexual Indians but the judges told them: ‘You should have done your homework.’ Extrapolating from studies suggesting 2%-13% of people are gay, lesbian or bisexual, the Times of India estimated in 2009 that India’s LGB community was 20 million to 120 million. The case challenging section 377 was first filed in 2009 by the Naz Foundation, which works on sexual health issues. Later that year the Delhi high court struck down the law, ruling that it discriminated on the grounds of sexual orientation and violated the right to protection of life and liberty. Several religious groups, including the All India Muslim Personal Law Board, the Apostolic Churches Alliance and the Utkal Christian Council, appealed against this ruling. A prominent BJP politician, BP Singhal, declared homosexuality to be ‘illegal, immoral and against the ethos of Indian culture’. Ruling in 2013, the supreme court upheld section 377 on the questionable grounds that only a ‘miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders’ and fewer than 200 people had been prosecuted under the law. However, it noted that parliament was free to annul the ban, as recommended by the Law Commission 13 years earlier. ‘The ruling tells us what we are as a people,’ the Naz Foundation responded. ‘It is bizarre, pathetic and sad.’ But the BJP president, Rajnath Singh, endorsed it, saying: ‘We believe homosexuality is an unnatural act.’ By 2015, however, the BJP’s view had shifted, with the finance minister, Arun Jaitley, saying ‘we need to reconsider [the court’s] conservative view’ and that it was more appropriate to 50 years ago. By January this year, when the supreme court said it would revisit the 2013 ruling, it was welcomed with rare unanimity among the major parties.

Section 377

The varying judgments of the five justices, reported by Bar & Bench, have important implications. Dismissing the prime argument of religious opponents, the chief justice, Dipak Misra, said being gay was ‘ingrained, inherent and innate…as natural a phenomenon as other natural biological phenomena’ and emphasised that ‘constitutional morality prevails over social morality’. Justice Indu Malhotra declared homosexuality and bisexuality to be ‘natural variants of human sexuality’, while Justice Rohinton Nariman said the ‘rationale for section 377, namely Victorian morality, has long gone … constitutional morality will supersede any culture or tradition.’ Justice  Dhananjaya Chandrachud criticised the ‘social hypocrisy’ behind section 377: that sex was primarily about procreation. ‘What is “natural” and what is “unnatural”?’ he asked. In another point that may have implications for protests across India, he said the constitution did ‘not demand conformity … It nurtures dissent as the safety valve for societal conflict’.

Chandrachud also insisted there could be no presumption of constitutionality in laws that predated the 1949 Indian constitution. He also questioned whether it was the state’s business to define permissible intimacy between consenting adults. Misra spoke of ‘transformative constitutionalism’ turning India from a ‘medieval, hierarchical society into a modern, egalitarian democracy’. In an interesting move from a Commonwealth perspective, Nariman cited analogous rulings by foreign courts, including the recent decriminalisation of homosexuality in Trinidad and Tobago. He also cited the Mental Healthcare Act, under which it was recognised that homosexuality is not a mental disorder. Challenging the maxim that is for elected politicians to amend the law, Nariman also observed: ‘It is not left to majoritarian governments to prescribe what shall be orthodox in matters concerning social morality.’

Malhotra dismissed the 2013 judgment that the law only affected a ‘miniscule fraction’ of Indians, noting that the constitution protects minorities as much as the majority. Malhotra concluded: ‘History owes an apology to the members of this community.’

As self-styled guardians of Hindutva (‘Hinduness’), the RSS condemned the decision, declaring: ‘Same-sex marriage and relationships are neither natural nor desirable’. The Deoband Muslim cleric Asad Qasmi said: ‘This decision is against natural behaviour and anyone with their right mind will not accept this.’ But the main opposition Congress party hailed it as ending an ‘anachronism’, while the Bollywood film-maker Karan Johar tweeted: ‘The country gets its oxygen back!’

‘Set us free’

Manvendra Gohil, who founded the Lakshya Trust to campaign for HIV/Aids education and LGBT rights, and as the son of the Maharana of Rajpipla is known as the ‘gay prince’, said: ‘This verdict has set us free. This is really a day of true independence.’ Amnesty International said it ended ‘a dark chapter’, while the United Nations hoped it was ‘the first step towards guaranteeing the full range of fundamental rights to LGBTI persons’.

In the Economic Times, Amulya Ganguli questioned BJP support for colonial bans on both gay sex and protest, and said the judges had proved themselves far more in touch with modern sensibilities. He warned the ruling party against trying to ‘impose a straitjacket of their pseudo-religious identity on the nation’. Milan Vaishnav, of the Carnegie Endowment for International Peace in Washington, said the ruling was also an ‘indictment of India’s political class … who lacked the courage to tackle existing constraints on personal freedoms.’

The New York Times asked whether numerous criminal cases brought under the colonial code would be dropped and whether cases of harassment based on sexual orientation could be filed. Another question it posed – whether gay couples would now be able to marry at a registrar’s office – seems unlikely to be resolved any time soon. But that doesn’t deter Keshav Suri, 33, a Delhi hotelier who was one of the petitioners. He said he was ready to file another writ for marriage equality and ‘take that battle on’.