India’s End to the Prosecution of Homosexuality
Unnatural offences: Whoever voluntarily has carnal intercourse 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. (Section 377 of the Indian Penal Code)
Section 377 of the Indian Penal Code had been in place since 1864 when India was ruled by the United Kingdom. Along with the criminalization of bestiality and incest, the provision has historically been interpreted to criminalize homosexual intercourse. Millions of homosexuals have been prosecuted, intimidated, harassed, blackmailed, and forced into hiding due to their sexual identity until eventually, 154 years later, homosexual intercourse was decriminalized in a landmark judgement by the Indian Supreme Court (September 2018). While the provision remains in force -criminalising bestiality and incest, non-consensual acts, and sex with minors- the unanimous ruling concluded that homosexuality should not be read into the wording of the statue, as it did not constitute “intercourse against the order of nature”—the ruling further denounced the decriminalisation of homosexuality as “irrational, indefensible and manifestly arbitrary”.
The LGBT community greatly celebrated the judgement. After all, this had not been the first time that Section 377 was challenged-- in fact it has been a 27 year long battle. In 1991 AIDS Bhedhav Virodhi Andolan published a report, challenging Section 377 - among other regulations discriminating against homosexuals - due to the evident extortion and violence directed towards homosexuals, not seldom undergone by law enforcement. The constitutionality of the provisions had been challenged several times since then until 2009 when a Delhi high court bench regarded Section 377 as unconstitutional and a violation of fundamental rights, repealing the provision. Nevertheless, the LGBT community’s joy over the success was short-lived due to a petition arguing that homosexuality was against Indian culture itself, leading to the previous decision to be overturned by the Supreme Court in 2013. The ruling insisted the LGBT community were a “minuscule minority” with only “so-called rights”.
So why the change of heart? The game-changer was 2017 Supreme Court landmark judgement, ruling that the right to privacy was a fundamental right, guaranteed by Article 21 of the Constitution. The judgement unexpectedly opened the path to once again challenge Section 377 due to the Justice’s statement that “sexual orientation is an essential attribute of privacy” and that “discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual”. The justices further were presented with estimates that India’s LGBT community consisted of up to 8% of the entire population-- 104 million people. Considering that the 2013 judgement was based on the argument that homosexuality was against Indian culture, the lawyers arguing against Section 377 used a highly effective and persuasive strategy, as they pointed towards instances when Indian culture had displayed homosexuality in their mythology. The overall standpoint was that homosexuality was not a choice but innate to human nature. Finally, despite the fact that homosexuality does not appear to be widely accepted by Indian people, the fact that the provision springs from the British regime might also have been contributed to the rejection of the colonial interpretation.
“History owed 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”, declared Justice Indu Malhotra in the historical judgement. Indeed, the change of law was long overdue and while it is a clear step forward in the legal landscape, since homosexuals will no longer face legal prosecution, one could fear for the judgement to have come too late. Today’s society has been taught to apprehend homosexuals for decades. A poll by the World Values Survey shows that in 2014 only 30% of Indians were “broadly supportive” of homosexuality. Over the past two decades homosexuals have been abducted and gang-raped by the police, beaten to death by family members, and subjected to emotional abuse until they saw no other escape but commit suicide. On a daily basis they were harassed, ostracised and shamed by society. The LGBT group Humsafar trust in Mumbai had 18 cases in the last two decades, where homosexuals were blackmailed, some of which consummated by law enforcement. Another practice known to India that is violently infringing on the rights of homosexuals is the so-called method of ‘corrective rape’— homosexuals are raped by the opposite sex, often by family members, in order to be ‘cured’ and converted to heterosexual-ism. It is essential to understand that while the judgement was an important step into the right direction, it simply undid what was a heinous law that originated from hate, fear, and misunderstanding and should never have come into force. It was the key unlocking a door to a whole new path leading to equality for everyone no matter one’s sexual orientation. And while the judgement itself was covered and celebrated all over the news around the globe, the channels have been silence about developments since then.
Now that homosexuals are no longer designated criminals, the questions to ask is: What rights do they have? For instance, many countries have regulations protection a certain group of people that has faced discrimination in the past. Considering the discriminatory history of India, regulations guaranteeing protection for homosexuals in areas - such as education, work-life, or administrative institutions - and an appropriate criminal system prosecuting discrimination should be implemented. Eventually, India will follow the trend of countries legalising same-sex-marriages. Since the Netherlands was the first country to do so in 2001, the number of countries where same-sex marriage is legal is rising, with a rapid increase in the past couple of years. A ground-breaking Supreme Court ruling in Austria declared that marriage equality for same-gender couples was a “fundamental human right”. While the European Court for Human Rights reconfirmed in 2016 that the right to marriage for homosexual couples was in fact not protected by the European Convention for Human Rights, the judgement by the Austrian Supreme Court might only be the first of many adopting the position that indeed it is.
India has made huge step forward, but the path to equality is long. Matters of sexuality and ultimately love are not only absolutely essential to human life but innate to our individual identities. They are private matters in which no one else may have a say in and that deserve utmost protection. The fact that the LGBT community has been forced into hiding, pretend to be what they are not, and prosecuted for something that does not concern anyone but themselves, should no longer have an impact on today’s regulatory systems. Afterall, being true to themselves does not infringe upon anyone else’s rights. The fact that people’s perceptions and discrimination against them still has an impact on the law is a relic of the past. It is a human right to be a homosexual and should be protected as such.
References
https://timesofindia.indiatimes.com/life-style/relationships/parenting/Parents-use-corrective-rape-to-straighten-gays/articleshow/47489949.cms
https://www.washingtonpost.com/world/asia_pacific/indias-supreme-court-decriminalizes-gay-sex-in-historic-ruling/2018/09/06/d15467b6-b111-11e8-8b53-50116768e499_story.html?noredirect=on&utm_term=.efcbae2000be
https://www.theguardian.com/world/2018/sep/06/indian-supreme-court-decriminalises-homosexuality
https://www.theguardian.com/commentisfree/2018/sep/06/india-lgbt-homophobia-section-377
https://www.economist.com/asia/2018/09/06/india-unbans-gay-sex
https://www.economist.com/the-economist-explains/2018/09/12/how-india-decriminalised-homosexuality
https://qz.com/india/1379620/section-377-a-timeline-of-indias-battle-for-gay-rights/
https://www.independent.co.uk/news/world/asia/section-377-india-gay-sex-crime-lgbt-supreme-court-dipak-misra-a8525116.html
http://lawcommissionofindia.nic.in/1-50/report42.pdf
https://eclj.org/marriage/the-echr-unanimously-confirms-the-non-existence-of-a-right-to-gay-marriage
https://www.bbc.com/news/world-europe-42243829
https://www.independent.co.uk/news/world/europe/austria-same-sex-gay-marriage-legal-constitutional-court-lgbt-rights-start-date-couples-a8092516.html
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