A new era for In­dia’s LGBT com­mu­nity

A Bri­tish colo­nial law per­mit­ted ho­mo­pho­bia. Now that sec­tion 377 is seen as un­con­sti­tu­tional, there is hope for change

The Guardian Weekly - - Comment & Debate - Mayur Suresh Mayur Suresh is a lec­turer in law at Soas, Uni­ver­sity of Lon­don

History owes an apol­ogy to the mem­bers of this com­mu­nity and their fam­i­lies … for the ig­nominy and os­tracism that they have suf­fered through the cen­turies. The mem­bers of this com­mu­nity were com­pelled to live a life full of fear of reprisal and per­se­cu­tion.” With these words, Jus­tice Indu Mal­ho­tra, one of the judges of the In­dian supreme court, held that sec­tion 377 of the pe­nal code, which crim­i­nalises con­sen­sual sex­ual acts be­tween adults of the same sex, was un­con­sti­tu­tional.

As one of the lawyers in­volved in a pre­vi­ous con­sti­tu­tional chal­lenge to sec­tion 377 be­fore the Delhi high court and the In­dian supreme court, I know how im­por­tant this judgment is. By ruling against the colo­nial-era law, the court de­liv­ered a pow­er­ful ri­poste to in­sti­tu­tion­alised dis­gust aimed at In­dia’s LGBT com­mu­nity.

Dis­gust and con­tempt have been cen­tral themes of sec­tion 377 since its in­cep­tion. In 1830 Thomas Ma­caulay, the main drafter of the pe­nal code, called ho­mo­sex­ual sex “odi­ous” and “re­volt­ing”. In 1884, a court in north In­dia ruling on the prose­cu­tion of a hi­jra (a mem­ber of South Asia’s tra­di­tional trans­gen­der com­mu­nity), com­mented that a phys­i­cal ex­am­i­na­tion of the ac­cused re­vealed she “had the marks of a ha­bit­ual catamite” and com­mended the po­lice’s de­sire to “check these dis­gust­ing prac­tices”. In 1934, a judge in Sindh (now Pak­istan) de­scribed a man who had con­sen­sual sex with an­other man as “a de­spi­ca­ble spec­i­men of hu­man- ity”. In 2003, the gov­ern­ment of In­dia said that de­crim­i­nal­is­ing ho­mo­sex­u­al­ity would “open the flood­gates of delin­quent be­hav­iour”. And in 2013 a supreme court ruling on an ear­lier chal­lenge to sec­tion 377 (now over­ruled) held that LGBT peo­ple con­sti­tuted a “mi­nus­cule mi­nor­ity” who bore only “so-called rights”.

This con­tempt had and con­tin­ues to have real con­se­quences. In the 1990s, the HIV/Aids epi­demic ar­rived in In­dia, link­ing ho­mo­sex­u­al­ity in the pub­lic mind with dis­ease and con­ta­gion. In 1992, the Delhi po­lice ar­rested 18 men in a park as part of a “clean-up” drive. The al­le­ga­tion was not that they were hav­ing sex but “were about to in­dulge in ho­mo­sex­ual acts”.

A 2003 re­port by a civil lib­er­ties group in Ban­ga­lore pro­vides grue­some tes­ti­mony of a hi­jra sex worker who was first gang-raped by a group of men and then gan­graped by the po­lice. In 2006, the Lucknow po­lice raided the of­fices of an HIV/Aids out­reach or­gan­i­sa­tion on the grounds that it was abet­ting the com­mis­sion of a sec­tion 377 crime. Tes­ti­monies pro­vided to the Delhi high court in 2007 doc­u­mented how a gay man ab­ducted by the po­lice in Delhi was raped by po­lice of­fi­cials for sev­eral days and forced to sign a “con­fes­sion” say­ing “I am a gandu [a deroga­tory term, mean­ing one who has anal sex]”. And in Haryana in 2011, two women were beaten to death by one of their neph­ews for be­ing in an “im­moral” relationship. This is not even to men­tion the ha­rass­ment, black­mail and os­tracism faced by LGBT peo­ple on a daily ba­sis. While in a nar­row sense the judgment is about sec­tion 377, it is so much more than that. Like the LGBT move­ment in In­dia, this case was borne out of the need to ad­dress en­demic forms of vi­o­lence.

Out of con­text, the words used in the judgment, like pri­vacy, dig­nity and equal­ity, can seem an­o­dyne. In fact, they lie at the core of what it means for our com­mu­ni­ties to sur­vive. Ear­lier this year, a les­bian cou­ple jumped to their death. In notes left be­hind, they are re­ported to have writ­ten: “We have left this world to live with each other. The world did not al­low us to stay to­gether.” The supreme court’s judgment makes it pos­si­ble that peo­ple may no longer see fear in the fu­ture, but hope.

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