In India, Still Unfurling the Rainbow Flag

At Kitty Su, a popular nightclub in a hotel in central New Delhi, the mood was ecstatic. The club was packed to the brim, with a long line of people waiting outside for their chance to join the revelry. Rainbow-colored posters decorated the walls, a rainbow-colored strobe light flashed on the dance floor, and young men gulped down rainbow-colored shots at the bar. Kitty Su’s owner, Keshav Suri, is a prominent LGBT rights activist. This party was in celebration of the Indian Supreme Court’s overturning of Section 377, a colonial-era law that criminalized private, consensual sex between adults of the same sex. As of that night, after a nearly two-decade-long battle, it was finally legal to be gay in the largest democracy in the world.

After the Sept. 6 judgement, Indu Malhotra, a member of the panel of judges who wrote the verdict, noted in the summary that “history owes an apology to LGBT persons for ostracization, discrimination.” Another member of the panel, Rohinton Fali Nariman, asked the government to widely publicize the order to counter the stigma associated with being gay, lesbian, or bisexual. “Homosexual people,” he announced, “have the right to live with dignity.” Section 377 was indeed a black mark on India’s constitutional values of democracy, equality, and personal freedom. It had no place in a nation striving for cultural change and in the midst of a sexual revolution that has seen the roles of men, women, dating, and love shift markedly over the last several years.

The law’s demise has ensured freedom and safety for hundreds of millions of Indians. In interviews conducted by the New York Times, the cost of being gay or transgender in India was high: “shunning by parents, social isolation, few protections in the workplace, and a frightening vulnerability to both police abuse and sexual assault with limited legal recourse.” In particular, the police would threaten to expose LGBT couples to their families and communities or put them behind bars for violating the law.

Police harassment was a particular concern when it came to health. According to Chapal Mehra, the senior director of Global Health Strategies, in an article for Scroll, “In the past, the police often misused and booked HIV peer outreach workers under Section 377. They have used Section 377 to try to stop HIV prevention activities on the grounds that they aid criminal activities, harass HIV outreach workers, and confiscate condoms as proof of sex work.” With Section 377 off the books, such harassment will be at an end, although everyone previously sentenced under the law will have to serve out the rest of their sentences.

Beyond reining in police brutality, there’s hope that ending Section 377 will improve health outcomes in India’s LGBT community as well. According to Mehra, “Public health evidence shows that irrespective of social class, there exists a clear relationship between a lack of social acceptance and legal rights with higher rates of HIV and sexually transmitted diseases, mental stress, substance abuse, violence and mental illness.” No wonder that suicide rates are also “much higher among sexual minorities in societies where they remain criminalised.” Decriminalization will give India’s public health sector and various nongovernmental organizations an opportunity to do their jobs better and serve the needs and concerns of the LGBT community with legal freedom.

It may seem counterintuitive, but the Section 377 verdict is also a huge positive for the ruling right-wing Bharatiya Janata Party (BJP) led by Prime Minister Narendra Modi. Under Modi, the BJP has developed a reputation for social conservativism and for playing to its religious Hindu base. The party is zealous about protecting cows—a sacred animal in Hinduism—and in its first year in office it announced a nationwide ban on beef. (India is home to one of the world’s largest populations of Muslims, and beef is an important source of protein for them in a nation where malnutrition abounds.) Prominent members of the party include Hindu monks, including one of the country’s most popular sages, Yogi Adityanath, who is now the chief minister of Uttar Pradesh.

The Section 377 verdict will allow the government to look more cosmopolitan and inclusive ahead of general elections next year. By letting the courts reach this verdict rather than pushing a parliamentary vote, the government got all the benefits of repealing the law without angering its vote base. For his part, Modi has not yet released an official statement on the verdict. The opposition Indian National Congress party, whose leader, Rahul Gandhi, has openly supported gay rights, has not made a statement either, likely because he has been on a two-week religious pilgrimage to Mount Kailash in China.

Not all reactions have been neutral or positive, though. Many religious organizations—Hindu, Christian, and Muslim—are up in arms about the verdict. Imam Umer Ahmed Ilyasi of the All India Organization of Imams of Mosques said that the Supreme Court should have consulted religious heads before making a decision. And Stephen Fernandes, the secretary of the Catholic Bishops’ Conference of India, said in a statement that just because “homosexuality is now not a crime in the IPC [Indian Penal Code] does not mean that homosexual acts or behaviour is morally acceptable or justified.” Arun Kumar, who is affiliated with the far-right Hindu organization Rashtriya Swayamsevak Sangh (the ideological parent of the BJP), remarked that “just like the Supreme Court, we also do not consider this criminal. But we do not support homosexuality, as same-sex marriages and relations are not in sync with nature. Traditionally too, Indian society does not accept such relations.” The negative reactions, though, have centered on the Supreme Court, not the BJP government, which is likely just what Modi intended.

The decriminalization of homosexuality has been the happy conclusion of one long legal battle, but the fight is not over. Although there are occasional references to gay men in Bollywood movies and Indian media, homosexuality, especially among women, remains taboo for a large portion of society. Despite isolated celebrations after the announcement of the verdict in Delhi, Mumbai, and a few urban centers, in most other Indian cities, towns, and villages, there is no splash of rainbow pride. The public at large either took little notice of the judgment or decided to look the other way.

There is also the matter of LGBT legal rights. There are no laws on the books regarding marriage, inheritance, or property, and the battle to acquire these will likely be long and contentious. But the repeal of Section 377 is still a big step, and likely could not have waited much longer. As I explained in my book India in Love: Marriage and Sexuality in the 21st Century, India is going through a sexual revolution and for the first time in hundreds of years: In urban India, sex is coming out of the bedroom and into the living room. Public conversations about sex—including about sexual violence—and displays of (heterosexual) sex in the mainstream media such as books, movies, and TV have become normalized. Sex outside of marriage is no longer a major taboo, and some people are beginning to feel a legal right to demonstrate and explore their sexuality.

The end of Section 377 shows that at least some of India is ready to talk about LGBT sex now, too. That said, there is a long way to go—and although homosexuality may have been decriminalized on the books, to destigmatize it in most people’s minds, India still needs time. At the party at Kitty Su the night of the Supreme Court ruling, I asked a drunk young man clutching his boyfriend’s hand whether his parents know about their relationship. “No way,” he said, with a laugh—nervous, sarcastic, or scared, it was hard to tell. He seemed sober for a second, and then they left me to go back to the pulsing dance floor. Tonight, they are free, and that’s what matters.