Sex Is India’s Last Colonial Burden

Five years after the Indian Supreme Court decided that an archaic piece of colonial law meant gay sex was illegal in India, the judicial system has a chance to set things right. In what may be the last great battle in a fight for gay rights that has lasted more than two decades, a five-member bench headed by India’s chief justice, Dipak Misra, appointed just last August, is challenging the constitutionality of Section 377, the British-era law that bans sexual activities “against the order of nature,” including homosexual activities.

In India’s Supreme Court system, the highest court in the country and the last word on legal matters, individual benches—subgroups of judges formed on an ad hoc basis—can reconsider the constitutionality of laws. Based on the proceedings so far, rainbow flags are waving. Hopefully. According to Justice Indu Malhotra, homosexuality “is not an aberration but a variation,” and “because of family pressures and societal pressures, they [gay people] are forced to marry the opposite sex.” The decision could not only liberate tens of millions of gay Indians from a cruel and pointless law but also set a precedent throughout the Commonwealth, which shares a similar legal tradition.

As India barrels into the 21st century, a progressive, fast-urbanizing, and young country is fighting for change against conservative, traditional forces struggling to maintain their control. There is a fierce backlash against modernity and Westernization, as well as a growing tension between the old and the new. Couples are choosing to make their own marital choices, but so-called honor killings have soared by an estimated 800 percent. Young Indians are building up the self-confidence to come out of the closet, but laws such as Section 377 make it unsafe for them to so. Sex education is urgently needed, but official government documents come out against it and recommend yoga and naturopathy. Premarital sex is becoming both more common and more commonly discussed in the media, but organized spaces for young people to talk about sex and gender are few and far between.

India’s Supreme Court originally recriminalized homosexuality the same year that British courts legalized gay marriage. Section 377, established by India’s British colonial rulers in 1861, prohibits sexual activities “against the order of nature” and is punishable with a fine and/or imprisonment ranging from 10 years to life. Countries that continue to punish homosexuality based on similar colonial-era laws include Botswana, Cameroon, Gambia, Kenya, Pakistan, and Bangladesh.

Enforcement of the law has been sporadic. In India, according to available public figures, in 2014, 1,148 Section 377 cases were recorded. In 2015, there was a 17.3 percent increase, including 154 cases that involved juveniles. National Crime Records Bureau data show that 814 cases—a majority—were crimes committed against children, rather than consensual sex among adults. Although these numbers are not huge, according to Anjali Gopalan, a founder of the Naz Foundation, a gay rights and HIV advocacy organization, the police and other authorities use Section 377 to harass, exploit, and extort.

In 2001, the Naz Foundation went to court to challenge the validity of Section 377, arguing that the law violated the Indian Constitution by depriving citizens of their rights to equal treatment under the law. After eight years of legal fights, which included several dismissals by the court, and burgeoning pressure from India’s liberal media, the Delhi High Court, part of the second layer in India’s three-tiered legal system, decriminalized consensual same-sex relationships in 2009, stating that Section 377 undermined constitutional values and the notion of human dignity.

In 2013, the Supreme Court unexpectedly overturned the earlier judgment and once again made gay sex a crime. This ruling crippled India’s gay rights movement and left the country’s LGBT population fearful, angry, and dejected. This Supreme Court judgment was formed by a bench of just two members and was headed by Justice G.S. Singhvi, who retired the same day the bench declared that only a “miniscule fraction” of Indians were LGBT and dismissed the “so-called rights of LGBT persons.”

Following the Supreme Court verdict, members of the opposition such as Shashi Tharoor, the lively member of Parliament from the opposition Indian National Congress, put forward a private members bill to decriminalize homosexuality, but the majority of parliament voted against it.

The right-wing government, headed by the Hindu nationalist Bharatiya Janata Party, has not helped the matter. Key members of the party—including Home Minister Rajnath Singh and Yogi Adityanath, the chief minister of Uttar Pradesh, India’s most populous state—have openly opposed revoking Section 377. While the government wants to create a suave, digitally inclined, and modern-minded India that can compete with the rest of the world, many voters remain deeply conservative. As a result, it has kicked the issue over to the courts instead of taking it up through legislation.

The declaration of the right to privacy as fundamental by India’s Supreme Court in 2017 reopened the debate on the legality of homosexuality. In response to the statement on “so-called” rights in the 2013 Supreme Court judgment, Justice D.Y. Chandrachud, part of the constitutional bench presiding over the right to privacy judgment, said LGBT “rights are not ‘so-called’ but are real rights founded on sound constitutional doctrine.”

Yet while India has lagged behind in the battle for gay rights, it has been a front-runner in transgender rights. In 2016, the Transgender Persons Bill was passed to bring social and economic equality to India’s transgender community. The bill provides special employment, education, court systems, medical care, and even separate toilets for India’s 4.8 million transgender people. Since the passing of the bill, many trans people have taken political office and other important roles; India has an openly transgender mayor and MP.

It may seem strange that India is so progressive when it comes to trans rights yet remains regressive when it comes to gay rights, but the answer lies in Indian history. The hijras, India’s traditional community of trans women, date back 4,000 years and are popularly thought to have the ability to bestow good fortune. Even today, they make special appearances at occasions such as housewarmings, births, and marriages, demanding money for their blessings. Major Hindu texts such as the Mahabharata and Ramayana are replete with such themes, and in several cases hijras are seen as demigods and celebrated for being in between genders.

Contrary to the acceptance and at times celebration of transgender people, homosexuality has historically been taboo in Indian culture—possibly because of the traditional emphasis placed on family and the continuation of family lines through reproduction.

But if Section 377 were revoked, the space for various other civil rights, such as the right to marriage, property, and adoption, would open up for LGBT people. India already has a complex legal system in which each religion has a parallel legal system of personal laws that govern civil laws. Prime Minister Narendra Modi’s government has explicitly warned the Supreme Court against opening the way for gay marriage, adoption, or other rights in its ruling. While the government may think that the battle will end with the decriminalization of Section 377, for India’s gay rights activists the battle has just begun. According to Gopalan, she and the Naz Foundation will not rest until “everybody in this country enjoys the same rights.”

The court’s verdict will not only have an impact on gay rights in India but also a profound impact across Commonwealth countries. A positive judgment would set a legal precedent across the 36 Commonwealth countries that still have draconian laws against gay sex. In 1930, Kenya adopted a law like Section 377, and court proceedings that began this year may finally lead to the decriminalization of homosexuality. A positive judgment in Kenya, combined with the Indian precedent, might lead the way for other African nations.

Revoking Section 377 will be a major step for India’s sexual revolution and a milestone in India’s cultural history. Given the momentum of this revolution, change is inevitable, and the ruling on 377 will hopefully herald an era of openness while signaling the decline of old restrictions.

Update, Sept. 6, 2018: Today, India’s Supreme Court overturned Section 377, the 157-year-old law that bans sexual activities “against the order of nature.” The move essentially decriminalized homosexuality.