I remember the feeling of frustration and hopelessness back in 2013 when the Supreme Court had usurped the Delhi High Court judgment and reinstated criminalization of homosexual relations in India. I remember the classroom discussion that had followed, the debate that had raged everywhere. A whole community had been threatened and made to feel ostracised by the very law that was supposed to protect it. Where the whole world was moving forward in accepting the LGBTQI community here we were taking a huge step back. A confirmation to the crude western stereotype of us being a backward nation. And for a second I questioned myself, asking if our so-called modern institutions of democracy and freedom were a farce? And today, 5 years later, I’m glad I held off on making that judgment.
On Wednesday, 8th January 2018, the Supreme Court made the decision to re-examine the constitutional validity of section 377 by appointing a larger bench of judges to look at it on the basis of a petition by 5 courageous people. This decision is welcomed after the 2013 fiasco and has brought back hope for the community which has been fighting against this Section for a very long time.
Section 377 is an archaic section of the Indian Penal Code that criminalizes sexual acts against the order of nature, including bestiality, anal penetration, and broadly homosexuality. Drafted during British Rule, it has not been amended or scrapped by the parliament of Independent India. The only constraint it has faced has been from a Delhi High Court judgment in 2009 that reinterpreted it only to be undermined later by the Supreme Court in 2013.
200 years ago, the law was drafted by the colonial government in 1838. In their own country, they had criminalized homosexuality since the 1500s. They enforced it in India in the 1860s to make convictions of rapists and homosexuals easier. In 1967, however, Britain decriminalized homosexuality in their country.And we, who had achieved our independence since 1947 still hadn’t amended or repealed this act. Today, the British government allows same-sex marriage and we still uphold this archaic law. We who consider ourselves a colorful and lively democracy continue to legally constrain the choices and freedoms of our people.
In 2009 however, in a landmark decision, the Delhi High Court declared that section 377 was unconstitutional and that sexual relations between two consenting adults are not a crime. This decision was upheld by members of the LGBTQ community everywhere and it was a proud moment for India. It was a progressive step in the right direction for India. It made marginalized communities feel a little less threatened in our country and upheld the citizens right to privacy, to choice and to freedom.
In 2013 however, in a heavily criticised decision, the Supreme Court overruled the Delhi High Court’s judgment and said that it was the parliament’s job to make and repeal laws and that Section 377 stands. It was the parliament’s prerogative to do away with or amend the law and this stance and decision was met with despair and disappointment. It also sparked a debate among people all over the country and was spoken about in the media, on the web and in public rallies and speeches.
This constant tug of war between the archaic traditions of India and its modern institutions defines how India is perceived by its citizens and the world. The world looks at India as a degenerate and archaic country that cannot possibly handle the complexities and intelligence of modernity and democracy.
Each time the courts look into section 377 it is on the basis of a petition lodged by a distressed citizens. And, today’s decision of the court to re-examine Section 377 is also based on our petitions.
When asked students in colleges who identify themselves as part of the LGBTQI community about the recent progress regarding this section they said that the very fact that this law exists to this day is absurd. Even if they do repeal it, how will they repeal the stigma in society surrounding the LGBTQI community? “I don’t think I will feel safe in this country anytime soon”, said a DU student from the LGBTQI community, echoing the painful thoughts of a million others. Another, more hopeful one, said “There is still a ray of hope that might allow us to be insouciant and queer on the streets.”
We hope that we get to enjoy beaming rainbows in the eyes of the LGBTQI+ community, in the next Pride March!