Vishnu hugged me and said ‘Thank you! Thank you!’ his eyes moist, his voice choking. Only hours ago on the 6th of September 2018, the Supreme Court (SC) of India had declared that Section 377 (Sec.377) of the IPC is ‘irrational’, ‘arbitrary’ and ‘incomprehensible’. This provision had been the basis to criminalise same-sex relations in India for over 155 years. The gratitude he expressed as a gay man was not particularly to me – but to all the activists, lawyers, media professionals, other allies and, of course, the Supreme Court.
The Historical Context
Traditionally in India society, expression and assertion of non-normative sexual identities and gender expressions – especially by men and those regarded as male at birth – were tolerated, accepted and in some cases even celebrated. However, the discourse on sexuality was deeply casteist and patriarchal in its moorings- with the need to control women’s sexuality (a patriarchal project) combined with the abhorrence for a ‘mingling’ of caste.
With the advent of British rule, sex in and of itself began to be treated as a shameful aspect of life. British colonial rulers not only framed laws that discriminated against the colonised but also against sexual minorities and sex workers. The need for the coloniser to keep society ‘clean’, ‘orderly’ and ‘moral’ meant, among other things, norm-setting in keeping with this line of thinking. Ruth Vanita and Saleem Kidwai in their book ‘Same-Sex Love in India’ (2000) point to the increasing homophobia that became evident from the 19th century due to the influence of the colonial legacy, the imposition of British anti-sodomy laws and the import of ‘Victorian morality’. Similarly in a bid to regulate and stem the apparent tidal wave of syphilis and gonorrhoea a number of legislations were passed, including the Contagious Disease Act sought to segregate and - eject prostitutes from military settlements that refused to be treated for a ‘contagious’ (i.e. sexually transmitted) infection. The underlying biases that informed these positions were ideas of immorality, baseness and uncivilised behaviour of the colonised.
The Indian Penal Code (IPC) which was the first codified criminal code in the British Empire, included a provision that was modelled on Britain's Buggery Act of 1533 which prohibited ‘the detestable and abominable offence’ of buggery (anal intercourse) committed with mankind or beast.’ This evolved to Sec 377 (Sec.377) of the IPC which criminalises ‘carnal intercourse against the order of nature’ describes ‘unnatural offences’ as – whoever voluntarily has carnal intercourse (i.e involving penile penetration) 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 fine.’
A legacy of violations and violence
On the face of it, it would appear that this merely criminalised certain sexual acts. In reality, it denied a section of people their basic citizenship rights and entitlements. Prejudice and discrimination have been fanned by the existence of this provision. It serves as a tool for the state apparatus to arrest (or threaten to arrest) as well to blackmail, extort money or unleash violence against the members of these communities.
In July 2001, in a series of arrests, ten people who were considered as ‘Men who have sex with men’(MSM) were arrested in Lucknow, the capital city of a northern Indian State. This included members of a leading NGO of the city. The media reportage fuelled the existent homophobia and the men were initially refused bail on the grounds that ‘They... are polluting the entire society by encouraging the young persons and abetting them for committing the offence of sodomy.’ They were released after close to two months, but the case dragged on for many years.
Fazil Khan who worked as a peer-educator in an HIV prevention programme among MSM (men who have sex with men) was picked up by the police in the night in a small town in Karnataka. The police then rounded up 12 other members of the sexual minority community and paraded in front of the media before huddling them up with other inmates in police custody for 10 days. There their now-‘outed’ identity made them victims of sexual and verbal abuse. One of them reported ‘In the police station I witnessed the constable beating X and Y.[two of the 12 who were held in custody] The police officer too humiliated and teased them in filthy language, and declared that they were not proper men …..none of us dared to question them after such humiliation. I requested them to allow me to inform my family, but they took away my cell phone.’ After being released on bail, some of them were harassed at the workplace and excluded by their peers. They are seen as the ‘bad ones’ who have done ‘jail time’. Their families too suffered.
These are among the few cases of where people have been booked under Sec. 377; however the criminalisation creates an atmosphere that allows a range of non-state actors to violate the rights of the community with impunity. This includes families and relatives, local goons and political leaders. Medical establishments and educational institutions are discriminatory or ignorant of these issues. House owners are reluctant to tenants who are (or appear to be) queer, and the sexual minority (LGBTQ) community is systematically excluded from a range of entitlements and services. The intersection of class, caste, gender identity and location accentuates the problem for many of them.
Sec. 377 has served to invisiblise the lives of people and to render them voiceless. ‘It has been such a struggle,’ said Sameer. ‘I talk a lot, often about a range of inconsequential things because I am afraid that people may ask me personal questions and .. how do I answer those? How do I tell them that I am in love with a man, and the State thinks I am a criminal? Now I feel like proclaiming it to the world.’
The IPC Sec 377 reinforced that idea that being gay was ‘abnormal’ or ‘unnatural’ and instilled fear, guilt and shame in people – scarring them deeply. It created an atmosphere of impunity that allowed the violators to go unpunished.
Milestones along the way
In 1990, a motley group of activists called the AIDS Bhedbhav Virodhi Andolan (ABVA) released a slim pink booklet entitled ‘Less than Gay’. This bold publication was one of the first documents to locate the violence faced by sexuality minorities within a larger circle of intolerance. ABVA went on to file a petition in the court seeking the scrapping of Sec.377 in 1994. As they failed to follow through with this petition, it was dismissed. The report documented an array of experiences that the community faced, from police violence to loneliness due to social rejection and formation of friendships and support.
It was, though a film entitled ‘Fire’ that brought into public discourse and middle-class drawing rooms, the issue of same-sex relations, especially between women. It was released in 1994 and drew the ire of the right-wing in the country. The conservative groups pressed for a ban on the film, but several women’s’ rights groups and sexual minorities protested against this moral policing.
From the late 1990s a series of programmes around the HIV prevention, care and support was rolled out at the national level. One of the identified ‘high-risk groups’ was a diverse population that were categorised as ‘men who have sex with men’ (MSM). The NGOs working with these groups started to voice the demands for the decriminalising of homosexuality.
Naz Foundation, one such NGO, filed the first important petition against Sec 377 asking for the excluding of acts of consensual private sex from the Section’s purview. The petition was dismissed by the Delhi High Court in 2004 as it questioned Naz’s locus standi. However, Naz persisted and the courts had to admit it. By 2004, the LGBTQ movement in India had gained considerable steam, several organisations like ‘Voices Against 377’ and other LGBTQ activists joined the petition. A flurry of affidavits, including from mental health professionals, families of members of the community, were filed in support of the original Naz petition.
The near lyrical judgement that the Delhi High Court delivered on July 2nd 2009 read down Sec.377. It was deeply empathetic of the queer experience, and the judgment evoked a broad range of rights- to privacy, equality, non-discrimination, dignity, and health. The judges had emphasised that sexual minorities were, indeed, equal citizens in this country. New spaces opened up following this verdict, as also a deeper sense of freedom and openness. Corporate spaces and campuses became seemingly more open and responsive Transwomen have been contesting elections in some states with political parties starting to spell out their stand on the legality of Sec 377. However, positions on homosexuality and non-normative genders and sexualities still remained -murky.
December 2013 saw another twist in this tale. The Supreme Court of India, in response to a challenge to the Delhi High Court judgement, reinstated Sec.377. It claimed that only ‘a minuscule fraction’ of the country's population had been affected by the law and therefore there were inadequate grounds to read down Sec 377. The parliament, it held, was the right arena to make changes, if any, to this Section. Human rights activists and members of the community adopted the slogan #377NoGoingBack and Vikram Seth, one of India’s most influential writer, eloquently dubbed it as a ‘bad day for law and love’.
While some spaces started to close after the judgement, in most cities and some small towns, ordinary LGBTQ persons continued to live openly and publicly proclaiming their claim to equal citizenship. ‘We had burst out our closets after the Delhi High Court judgement,’ said Shilpa ‘We were definitely not going to crawl back in.’
Subsequently, the parliamentary route was explored and in 2016 a Member of Parliament (MP) from the Indian National Congress, Shashi Tharoor sought to introduce a Private Members Bill to amend Sec 377 in the lower house of the Parliament. However, the Bill was roundly defeated.
Back in the Supreme Court, there were two judgments that have helped the anti-377 movement.
In 2014, in what later came to be known as the NALSA judgement, the SC accorded the transgender community the right to choose their gender. It also directed the government to make provisions to ensure that their legal, political and economic rights be protected and promoted.
The second landmark judgement in terms of LGBTQ rights came in 2017 when in response to a petition, the SC ruled that ‘right to privacy’ was a fundamental right. This was important in the fight against Section 377 as it elaborated on the theme of sexual orientation and privacy. It noted that sexual orientation is an essential attribute of privacy, and discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.
Following these judgements, a group of LGBTQ activists and celebrities including celebrated dancer Navtej Singh Johar filed petitions against Sec. 377. Others later also filed supporting petitions, including from transgender activists. The petitions were assigned to a Constitutional Bench. On September 6th 2018 the Supreme Court held that sexual relations between consenting adults in private are not an offence. In effect, it had decriminalised consenting sex between adults – including homosexuality.
The Judgement that strikes down Sec 377
The lengthy judgement reiterated that what Sec. 377 did was rob people of their dignity and that it infringed on their constitutionally guaranteed Fundamental Rights -to equality and non-discrimination. It stressed that all citizens were ‘entitled to be treated in society as human beings without any stigma attached to any of them.’ It pointed out that a set of people were denied a range of opportunities in their private and public life and due to this Section (even if it was not its stated object). The Section it underlined placed ‘unreasonable restriction on the right to freedom of speech and expression’ and therefore it violated the idea of ‘substantive equality’. According to lawyer and legal scholar Gautam Bhatia, this judgment ‘represents the most advanced interpretation of Article 15(1) and non-discrimination that has come out of the Supreme Court thus far.’
This judgement introduced or strengthened a range of principle around human rights and social justice. This includes the radical idea of self-determination to include one’s sexual identity and the idea of sexual agency. It also underlined that justice has to be rendered even to ‘discrete and insular’ minorities. Sec 377, the judges held, was problematic as it did not differentiate between consensual and non-consensual acts (unlike Section 375, which defines rape, for instance).
In statements that have far-reaching implication for future jurisprudence, the judges noted that the root cause of the problem were norms that ‘perpetuates stereotypes of gender roles and gender inequality’. Similarly, the verdict included other broad ideas such as that of ‘non-retrogression of rights’: (i.e. as the Constitution is evolving it needs to further the rights of citizens and not curtail them) and the centrality of constitutional morality (as opposed to social morality) in shaping laws of the country. ‘Fundamental rights do not depend on the outcome of elections’ it proclaimed.
Grounded in ideas of social justice the judgement speaks of the ‘chilling effect’ that the Sec 377 has had on countless people and goes on to say, “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.’ It urges the Centre to initiate programmes to reduce and eliminate the stigma associated with the LGBTQ community, and give government officers (particularly the police) sensitisation and awareness training to protect the community from abuse.
What it means
The most direct consequence of the judgement is that it lifts a huge load of fear from among members of the community. ‘We are not illegal any more.’ was a common refrain among the cheering activists on 6th Sep 2018. Legal institutions play a crucial role in norm setting and therefore the message that goes out to institutions of society is that the members of LGBTQ community are not criminals and ‘outlaws’ any more. Individuals feel a greater sense of freedom, with some of them describing 6th Sep 2018 as their 15th Aug 1947 (the day India gained its independence). A young gay man remarked, ‘Today I can take my mask off.’
The sense of freedom also means that organisations, groups, companies that support members of the sexual minority community can be more open about their engagement with these issues. More funding and support can be directed to this cause and public discourse can be promoted. The judgement can also be used by members of the community and their supporters to pressure organisations to become more open on LGBTQ issues. Other movements and peoples can draw on this judgement in their own struggles, and the judgement also has implications for other countries – especially the Commonwealth nations.
‘There is no need now to be circumspect or indirect in our inclusion of LGBTQ issues as part of our diversity programme,’ said a human resource head from a multinational company. ‘I don’t have to hide our support for members of the LGBTQ community anymore’ was how one a staff of a social service organisation reacted.
Besides this, the deeper implication is also about sexual minorities access to a range of other entitlements that have been denied to them. The excuse that had been used to declare them ‘non-citizens’ has evaporated. Many activists have begun to work on putting together a larger non-discrimination bill- now that this hurdle has been crossed. For some others, this is a step to press for a range of other personal liberties – to marriage, adoption, inheritance etc.
It was also telling that there were voices against the judgement. Some newspapers and media house and some religious bodies chose to ignore or downplay the verdict. Several religious groups made outright statements condemning the judgement and said it was ‘a step towards self-destruction’, while others spoke of it as a sin that needs to be corrected through counselling. ‘It a danger to national security’ thundered a BJP MP. ‘It is not really part of our culture’ offered others.
Siddamma is a talented and dynamic Jogappa (a traditional transgender community in South India). I spoke to her the day after the judgement. ‘What do you have to say?’ I asked her. ‘I haven’t heard anything about this,’ she said. ‘Does it also apply to us?’ The fact that the TV channels kept referring to it as ‘gay sex’ makes it restrictive and narrow – when in fact It is about sexual expression amongst consenting adults –irrespective of their gender. The painting of it as gay sex means an invisiblising of other identities and people.
‘This is a great step and I feel so relieved, but I am not going to come out as yet because unfortunately my boss, my family, my neighbours and society at large still do not think like the Supreme Court’
Therefore the need of the hour is both to ensure greater awareness about the judgement especially in various small towns and villages, but also to take on the challenge of societal level changes. It is also imperative that we understand that for people who are at the margins due to their sexuality, class, gender and caste, the layer of protection is particularly thin; even though they have been on the frontlines of this battle.