LGBT victory in India!

Published 21st September 2018

“I am what I am, so take me as I am”- Johann Wolfgang von Goethe.

In an eloquent, unanimous, landmark ruling that opens with the above quote, India’s highest court, the Supreme Court, decriminalised consensual gay sex between adults earlier this month. This judgement is the first important step in the recognition of rights of the LGBT community in India.

Consensual gay sex between adults has been criminalised in India in terms of section 377 of the Indian Penal Code (IPC) which states that, “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished…” Other acts that are considered to be “against the order of nature” and therefore prohibited by section 377, are bestiality, and acts of carnal intercourse against minors and non-consenting adults. These aspects will, rightly so, remain and unaffected by the Supreme Court ruling.

Section 377 is an antiquated provision that dates back to the British colonial rule. This erroneous, homophobic and discriminatory section that considers consensual gay sex between adults to be on par with bestiality, was introduced in 1861. India, like many other former British colonies, continued to carry the yoke of colonial legislation, much to the detriment of the LGBT community whilst England decriminalised homosexual conduct in 1967.

Earlier this year in April, British Prime Minister Theresa May indicated that she, “deeply regrets” the laws introduced during British colonial rule and that the UK government would support legislative reform in the Commonwealth. This international support is important but real change was brought about by domestic Indian activists who took up the cause. The Naz Foundation, an Indian NGO, and other petitioners, took the matter to the Delhi High Court and won in 2009, resulting in the striking down of section insofar as it criminalised consensual gay sex.

This was overturned on appeal in 2013, after a coalition of Christian, Hindu and Muslim groups petitioned the court. The court indicated that only a small portion of India’s population was part of the LGBT community and therefore repealing section 377 would be “legally unsustainable”. They also indicated that it was up to the legislators to amend the law not the judiciary. Attempts to introduce legislative changes through parliament and a private members bill were also thwarted on several occasions by conservative parliamentarians.

Thankfully, the Naz Foundation, (an organisation’s whose managing director had previously been arrested under this archaic law), and the other petitioners determined to keep up the fight for equal treatment of the LGBT community, did not give up. They eventually found themselves before the Supreme Court in January this year, resulting in this seminal September judgement.

The LGBT community has been victimised and persecuted in India for many years. Many have kept their sexual orientation a secret for fear of stigmatisation, rejection, arrest and extreme violence. In 2015, it was reported that 1284 people were arrested under section 377, however it is not clear how many of those arrested were adults engaged in consensual acts how many acts involved a lack of consent.

Many members of the LGBT community report being blackmailed by police or by people threatening to report them to the police due to their sexual orientation, a “crime” that attracted anything from 14 years to life in prison.

When they are not being financially extorted many report being forced to perform sexual favours. Others have been harassed in the workplace and have been unable to report it due to fear of arrest and further victimisation. Their vulnerability has been greatly exacerbated by the fact that the law, and its enforcers have always been against them. Now at least the law is charting the way for an India that embodies equality for all regardless of one’s sexual orientation.

Decriminalisation is just the first step. LGBT communities and activists will need to challenge societal stigma and a prevailing intolerance to anything that does not fit into a heterosexual paradigm. India is unfortunately not the only country in the world that battles with prejudice in this regard.

To date there are 69 countries in the world that criminalise consensual gay sex between adults. In Sudan, homosexuality attracts the death penalty. Whilst this momentous judgment from the Indian Supreme Court of Appeal is to be celebrated it is also a vital moment to reflect on the struggles of LGBT communities across the world, particularly in the 69 countries that continue to treat homosexuality as a crime.

The Supreme Court of India has done right by the LGBT community, hopefully the rest of Indian society will follow, and LGBT people will no longer live in fear. As aptly put by the Supreme Court, “History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.”

** This article appeared in the Star Newspaper on Thursday 20 September under the title “Indian Penal Code Change an LGBT victory”

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