The supreme court’s decision removed a 150 year old clause created by the British colonial government.
Rainbow flags in Alvula, India. Kandukuru Nagarjun. CC 2.0
Last Thursday the Indian supreme court voted to dismiss section 377 of the Indian Penal Code which made gay sex illegal. The law, labeling gay sex as “against the order of nature” was created in 1860 by the British colonial government and was in existence for 150 years before being struck down last week. While the section was briefly dismissed in 2009, it was reinstated four years later due to appeals filed at the supreme court. It was the supreme court’s decision a few days ago that removed the law once and for all.
The dismissal of the law was due in part to the tireless efforts of many LGBTQ activists who risked reprecutions of up to life imprisonment for publicizing their sexuality in order to petition and protest for the removal of the law. They represent the many gay and trans people who have suffered blackmail, intimidation, and abuse because of the section.
“History owes an apology to members of the community for the delay in ensuring their rights,” Justice Indu Malhotra said in a statement.
The supreme court went further than merely decriminalizing gay sex: as part of the repeal of section 377, gay people in India will finally receive all the protections of their constitution.
The law, called “irrational, indefensible and manifestly arbitrary” but Chief Justice Dipak Misra, was defeated in part because it conflicted with a recent law granting privacy as a constitutional right. It was also largely perceived out of step with modern India. In their decision, the justices referenced the fact that the Indian constitution is not “a collection of mere dead letters”, but a document open to evolving with time and social attitudes.
According to Menaka Guruswamy, one of the main lawyers representing gay petitioners, the court's decision not to discriminate based on sexual orientation has created a “very powerful foundation.” It represents a public acknowledgement that as a gay person, “You are not alone. The court stands with you. The Constitution stands with you. And therefore your country stands with you.”
In excitement over the law it is important to acknowledge that India is not in any way “catching up” to the west in LGBTQ rights. Instead, the removal of this oppressive law is an example of India decolonizing. Many Hindu temples show images of people of the same sex embracing erotically. In the temples of Khajuraho there are depictions of women embracing and men showing their genitals to each other. There are Hindu myths in which men become pregnant and in which transgender people are awarded with special ranks. India Today writes that “In the Valmiki Ramayana, Lord Rama's devotee and companion Hanuman is said to have seen Rakshasa women kissing and embracing other women.”
In response to the law’s framing of homosexuality as unnatural, Anil Bhanot wrote in the Guardian that “the ancient Hindu scriptures describe the homosexual condition to be a biological one, and although the scripture gives guidance to parents on how to avoid procreating a homosexual child, it does not condemn the child as unnatural.”
The removal of the law represents a shift toward a more progressive future while also returning to India’s pre colonial attitudes.
EMMA BRUCE is an undergraduate student studying English and marketing at Emerson College in Boston. While not writing she explores the nearest museums, reads poetry, and takes classes at her local dance studio. She is passionate about sustainable travel and can't wait to see where life will take her.
