​​​​India Decriminalizes Gay Sex and
Demolishes a Colonial-Era Vestige

By M. P. PRABHAKARAN









 
 
 


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A Gay Pride march in New Delhi, in 2017. A colonial-era law, known as Section 377, discouraged many members of the lesbian, gay, bisexual and transgender (LGBT) community in India from coming out. On September 6, 2018, the Supreme Court of India struck down the law as unconstitutional.
(The picture, by Rebecca Conway, is reproduced courtesy The New York Times) 



The first thought that crossed my mind when I heard, on September 6, 2018, that India’s Supreme Court had struck down the law that criminalized gay sex, was: “I wish I were there on the premises of the court to join my gay friends in their celebration of this historic event.”
 
There was a personal reason for my wish: For a long time in my life, I was one of those prudes who condemned gay sex and criticized those who engaged in it. Over the years, I evolved and matured into accepting that those who engaged in it, some of whom were my close friends, were perfectly normal human beings. The main factor that contributed to my changing the attitude was the way those friends conducted themselves in society and made invaluable contribution to it. I began to say to myself that those who looked down upon my gay friends as deviates couldn’t hold a candle to them in terms of decency and usefulness to society.
 
My only regret when I heard the news from New Delhi was that it took this long for the learned justices of India’s apex court to remove a blunder that remained on the statute books of the country for over a century and a half and catch up with the civilized world. The blunder was one of the vestiges of India’s British-colonial past. It’s a shame that while Britain itself decriminalized homosexuality over half a century ago, the vestiges of its laws founded on Victorian morality still linger in many of its former colonies. Until the Supreme Court erased this colonial-era vestige, India was among the more than 70 countries in the world, including Afghanistan, Nigeria, Syria, Sri Lanka and Pakistan, where gay sex is illegal, according to the International Lesbian, Gay, Bisexual, Trans and Intersex Association, a Geneva-based rights group. It was not something the largest democracy in the world could be proud of.

What Section 377 Says

The law, known as Section 377 of the India Penal Code, was introduce in India by Britain in 1861. According to this law, anyone having “carnal intercourse against the order of nature” shall be punished with imprisonment up to 10 years, as well as a fine. Though criminal prosecution under the law has been rare, interested parties in India have used it as a weapon to blackmail, intimidate, harass, and discriminate against the gay community.
 
As The New York Times says in its Sept. 7 report on the Supreme Court's decision, “Just to file the legal challenge that led to Thursday’s ruling was an act of bravery. The more than two dozen petitioners, who included gay, lesbian, bisexual and transgender people, could have been rounded up and arrested simply for identifying themselves as gay and coming forward.”
 
Let’s applaud them for mustering the courage to come forward and initiate the legal action that produced this remarkable result. Let’s also applaud the five-member bench of the Supreme Court for unanimously deciding to declare the law unconstitutional. The decision is a testimony to the fact that the justices of the court have, belatedly though, recognized the importance of moving with the times. Particularly noteworthy are the words in their ruling that the Indian Constitution was not a “collection of mere dead letters” and their determination to make it evolve with time. There is a message in those words for the so-called constitutional-originalists in the U.S. Supreme Court.
 
The ruling issued by the five-justice bench, presided over by Chief Justice Dipak Misra, declare Section 377 “irrational, indefensible and manifestly arbitrary.” It also said: “Social exclusion, identity seclusion and isolation from the social mainstream are still the stark realities faced by individuals today and it is only when each and every individual is liberated from the shackles of such bondage and is able to work towards full development of his/her personality that we can call ourselves a truly free society.”
 
Reports from New Delhi say that Gays and their supporters waiting outside the Supreme Court erupted in joy and applause and started hugging one another and dancing, when they heard the verdict. Reports also say that the celebrations instantly spread to other major cities of the country.

“History Owes an Apology” to Gays

The New York Times quotes Justice Indu Malhotra, one of the five-member bench that deliberated on the case, as saying: “History owes an apology to members of the [gay] community for the delay in ensuring their rights.” After reading those words, I thought to myself, “I owe an apology to my gay friends, too, for having been mean to them and critical of their sexual orientation for a long time.”
 
All Indians knew that the ban on gay sex was as short-sighted and impracticable as prohibition and ban on abortion. They knew that those who wanted to drink, resort to abortion or engage in gay sex always found ways of getting around the law to do it. Thanks to this court ruling, they will be able to do it hereafter without any fear of being punished by the authorities and ridiculed by prudes.
 
The Times report says that all religious conservatives who fought for the preservation of Section 377 all these years were outraged by the court’s ruling. It also says that “conservative Christians, Muslims and Hindus, who often find themselves at odds with one another, blasted the ruling as shameful and vowed to fight it.”
 
I request them to direct their wrath at the clerics in their religions whose immoral activities have been known to all, but were hushed up, all through history. Haven’t the “Christian groups that put up the most aggressive defense of the law” read the numerous stories that appeared in newspapers recently about the widespread sexual abuse of children by priests that have been going on for years? Did they do anything about it? Even the Pope looked the other way when such abuses were brought to his attention, it is reported. The outraged Christians may please note that what the Supreme Court has legalized now is consensual sex between same-sex adults, not sexual abuse of children by adults, including priests. This goes for the outraged Muslims too.
 
The Hindus who are outraged by the court decision are betraying their ignorance of their own religion. Aren’t they familiar with stories in Hindu mythology, and with paintings and sculptures in Hindu temples, on gods and goddesses indulging in homosexual acts when circumstances led to them?
 
No matter what the religious conservatives say and threaten to do against them, gays in India have every reason to be proud of and emboldened by the Supreme Court’s recognition of their sexual orientation as “normal,” and not "against the order of nature" as Section 377 characterized it. In the words of Menaka Guruswamy, one of the lawyers who represented the petitioners in the case, it has sent the gays this message: “You are not alone. The court stands with you. The Constitution stands with you. And, therefore, your country stands with you.”
 
To which I may add: The whole civilized world stands with you. 
 
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(Published on September 14, 2018)

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