Supreme Court of India strikes down Section 377 – Jeffrey Gettleman, Kai Schultz & Suhasini Raj

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Visvanatha Temple, Khajuraho, MP.India has a complicated record on gay issues. Its dominant religion, Hinduism, is actually quite permissive of same-sex love. Centuries-old Hindu temples depict erotic encounters between members of the same gender, and in some Hindu myths, men become pregnant. In others, transgender people are given special status and praised for being loyal. – Jeffrey Gettleman, Kai Schultz & Suhasini Raj

In a groundbreaking victory for gay rights, India’s Supreme Court on Thursday unanimously struck down one of the world’s oldest bans on consensual gay sex, putting to rest a legal battle that stretched for years and burying one of the most glaring vestiges of India’s colonial past.

After weeks of deliberation in the Supreme Court and decades of struggles by gay Indians, India’s chief justice, Dipak Misra, said that the colonial-era law known as Section 377 was “irrational, indefensible and manifestly arbitrary.”

“We have to bid adieu to prejudices and empower all citizens,” he told a packed courtroom.

The court said that gay people were now entitled to all constitutional protections under Indian law and that any discrimination based on sexuality would be illegal.

All around this country, explosions of happiness erupted—and some of outrage, as well.

Gay people hugged, danced, kissed and closed their eyes and cried on the steps of the high court in Bangalore. In Mumbai, human rights activists unleashed a blizzard of confetti.

In their judgments, the justices said that homosexuality was “natural” and that the Indian Constitution was not a “collection of mere dead letters” and should evolve with time.

The Indian justices seemed well aware of the place they were taking in history. Nation after nation has been extending full rights to gay people under the law, and now India, as the world’s second-most populous country, stands, at least legally, among the more progressive.

Human rights activists said they hoped this decision would reverberate around the world.

“This ruling is hugely significant,” said Meenakshi Ganguly, the South Asia director for Human Rights Watch. It could set a precedent for nations with similar colonial-era laws to end their “discriminatory, regressive treatment” of gay and transgender citizens, she said.

The court said that Section 377, which was written in the 1860s to cover what were then considered unnatural sexual acts, would still be used in cases of bestiality, for instance, but that it could not be applied any more to consensual gay sex.

The justices seemed moved by the stories they had heard in court from the gay plaintiffs about harassment, blackmail, abuse and persecution.

“History owes an apology to members of the community for the delay in ensuring their rights,” Justice Indu Malhotra said.

Menaka Guruswamy, one of the lead lawyers representing gay petitioners, called Thursday’s decision a “huge win” with important implications.

In the courtroom, Ms. Guruswamy said, the mood was “optimistic, buoyant, very excited.” As the judges read out their decision, the crowd tried to remain composed. Outside, a cheer went up and people hugged tightly.

“This decision is basically saying, ‘You are not alone,’ ” Ms. Guruswamy said. “The court stands with you. The Constitution stands with you. And therefore your country stands with you.’ ”

But in many ways, India remains a deeply conservative country, and hard-line religious groups on several sides—Hindu, Muslim and Christian—condemned the ruling.

“It’s shameful,” said Swami Chakrapani, president of All India Hindu Mahasabha, a conservative Hindu group. “We are giving credibility and legitimacy to mentally sick people.”

India has a complicated record on gay issues. Its dominant religion, Hinduism, is actually quite permissive of same-sex love. Centuries-old Hindu temples depict erotic encounters between members of the same gender, and in some Hindu myths, men become pregnant. In others, transgender people are given special status and praised for being loyal.

But that culture of tolerance changed drastically under British rule. India was intensely colonized during the height of the Victorian era, when the British Empire was at its peak and social mores in England were prim and often painfully proper.

This was when the British introduced Section 377 of the Indian Penal Code, imposing up to a life sentence on “whoever voluntarily has carnal intercourse against the order of nature.” The law was usually enforced in cases of sex between men, but it officially extended to anybody caught having anal or oral sex.

Though in recent years more and more Indians have come out, and acceptance of gay, lesbian and transgender people has grown to some degree, the fact that intimate behavior was still criminalized created much shame and discouraged countless Indians from coming out.

In hearings in July, lawyers argued that the law was terribly out of sync with the times and legally inconsistent with other recent court rulings, including one made last year that guaranteed the constitutional right to privacy.

They pointed to similar old anti-sodomy laws that had been toppled in the United States, Canada, England and Nepal, India’s smaller and poorer neighbor. And they said that Section 377 had a long and ugly history as a cover for blackmailing, harassing and sexually assaulting gay and transgender Indians.

Occasionally, lawyers pushed beyond the legal arguments and made pleas for judges to recognize the humanity of the petitioners.

Ms. Guruswamy spoke of the decades-long relationship between two older petitioners, Navtej Singh Johar and Sunil Mehra, and the sacrifices the two had made to keep their partnership secret.

Ms. Guruswamy encouraged the judges to think of all the young gay people who did not want to follow that road and spend their lives hiding who they really were.

“Tell my young clients that their lives will be different,” she pleaded. “The recognition of equal citizenship, that is the business of life, so that they know they are loved, protected.”

During the hearings, the judges signaled that they were ready to knock down this law. Justice Malhotra called homosexuality a “variation, not an aberration.” And after a lawyer appearing for India’s government tried to cut off Ms. Guruswamy, Chief Justice Misra said, “Let her speak!”

Interestingly, India’s leading politicians, who usually never resist an opportunity to weigh in on a hot issue, have mostly stayed out of the debate.

Prime Minister Narendra Modi has said very little about gay rights, despite the conservativeness of his governing Bharatiya Janata Party on some social issues.

During the hearings in July, the central government announced that it was not going to take a position on Section 377.

It was some of India’s Christian groups that put up the most spirited defense of the law. Lawyers for these groups argued that sexual orientation was not innate and that decriminalizing gay sex would lead to the transmission of H.I.V.

Prosecution under the law was rare. But still, many Indians feared that if they reported crimes like rape, they would be the ones arrested. Some gay people have shared disturbing stories about being raped by police officers and then threatened with jail time if they ever came forward.

Section 377 has been in the cross hairs for several years now, with the courts going back and forth on it. In 2009, a court in New Delhi, the capital, ruled that the law could not be applied to consensual sex.

But Hindu, Muslim and Christian groups then filed appeals in the Supreme Court, and in 2013, the court restored the law, saying that Parliament, and not the courts, should take up the issue. In its judgment that year, the Supreme Court justified the ruling by writing that only a “minuscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders.”

Activists regrouped. What they were looking for were people brave enough to serve as plaintiffs and tough enough to withstand intense scrutiny. In 2016, five gay and lesbian Indians submitted a writ petition challenging Section 377 on the basis that it violated their rights to equality and liberty.

The initial group included Mr. Johar, a dancer, and his partner, Mr. Mehra, a journalist; Ritu Dalmia, a celebrity chef; Ayesha Kapur, a businesswoman; and Aman Nath, a hotelier.

As the Supreme Court prepared to hear the case, more than 25 other Indians with varied social and economic backgrounds joined them.

Among those to file a petition was Anurag Kalia, 25, an engineer living in Bangalore, who was once so afraid to say the word “gay” that he practiced doing so in front of the mirror.

“I used to whisper it,” he said.

As the court prepared to announce its verdict, Mr. Kalia checked his phone “like crazy.” After the ruling, he stepped out of his office for a few quiet moments, feeling ready to celebrate, a bit numb, unsure of what the future held, but also feeling “relief, relief.”

“It feels like there’s much more to come,” he said. “This is just the first strike.” – The New York Times, 6 September 2018

Anand Grover
Gay community celebrates on April 6th, 2018


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2 Responses

  1. This article by Gurumurthy, first published in 2009 and updated in 2012, is being reproduced here for the edification of the respected Dr Subramanian Swamy, who appears to hold a blinkered, christianised view of homosexuality which he tries—unsuccessfully—to bolster with medical pseudo-science.

    S. Gurumurthy

    Section 377 is Macaulay’s law, not Manu’s – S. Gurumurthy, The New Indian Express, Chennai, 5 July 2009

    Homosexuals displaced the Economic Survey for the year 2008-09 from the headlines of most media on July 3, 2009. “Historic bench mark”; “Sexual equality”; “Landmark Judgement”. This is how the media had headlined the Delhi High Court judgment holding Section 377 of the Indian Penal Code, which makes homosexual acts offences in law, partly unconstitutional. Section 377 of the Indian Penal Code was not Manu’s code. It was Macaulay’s. This colonial law made homosexuality punishable. In Judo-Christian tradition, homosexuality was seen as an act against the law of God, punishable even with death. The Islamic rules also prescribed capital punishment for the offence. In all Abrahamic traditions, the hostility to homosexuality originated in the story associated with the city of Sodom (the etymological source of the world “sodomy”) where the sexual sin was first committed according to their texts, though the respective accounts varied. This is the philosophy of the law against homosexuals in Abrahamic societies. Macaulay’s law reflected their theological position. Earlier, there was no state law in India to punish homosexuality. Does that mean that the Hindu—read Indian—tradition approved of homosexuality? What was the position of the state and state enacted laws in India on such matters?

    The king or the state in India had refrained from handling most issues which the society or families could handle. It is the colonial state, with its laws and courts, that began to intrude the sovereign domain of the family and society. The Indian discipline was always built around unenforced social and family norms; not state laws. Self-restraint and shyness were the tools to regulate the deviants from the norms, not the police or courts. Even today, it is this non-formal moral order—read dharma—not the laws of parliament or state assemblies, that largely governs this society. India is otherwise ungovernable; just some 12000 plus police stations in some 7 lakh towns and villages cannot regulate over 110 crore people. Thanks to this moral order, the Indian society had handled, and even now handles, such sensitive issues with greater finesse than does state law. It is in stark contrast to the gross state law and media discourse of today. Historian Devdutt Pattanaik says that in Hindu literature “though not part of the mainstream, the existence of homosexuality was recognised, but, not approved”. Narada Smiriti prohibited marriage of homosexual men with women. Manu did suggest mild punishments for homosexuals, but [only those] of an extreme type. The Indian tradition therefore neither encouraged nor punished lesbians or gays; nor did it celebrate them or despise them. It regarded them as a small, marginal fact of life, preferring to ignore them; and treating them as not worthy of public discussion for or against what might disturb the rest of the society.

    Homosexuals are, in numbers, marginal even in the West. In the US where the gays and lesbians are aggressive in the public discourse, the 2000 US Census data reveals that only 0.42% households are same-sex households. Studies in US or France and Canada show just some 1-2% admit to be gays or lesbians. The deviation from the mainstream behaviour is as marginal as that. Yet it is the geo-Christian hostility to even such marginal groups that turns them into vociferous action groups in the West.

    In the Indian—read Hindu—civilisational ethos, humans had never been seen as belonging to one uniform behavioural class. The Indian civilisation had recognised diversity in behaviour and morals. It therefore never imposed one moral value or rule for all. But it believed in a hierarchy of moral principles. It held out right conduct as ideal for the rest to imbibe and follow, but of their own volition. Even as it had evolved normative moral principles for the mainline society, it had subtly ignored, rather than focus on or punish, the deviants. Those who could not follow an ideal were never held as illustration for others to follow.

    For example, the Indian society had evolved one man, one wife as the ideal model for life, but never made it the law. It had indeed celebrated monogamy; but had never prohibited or punished polygamy. It did not even outlaw polyandry. Even today, regardless of the law, polygamy prevails in different parts of India. Even polyandry exists in certain communities in North India. It is neither proscribed nor accepted by others. But even those who did not follow the ideal of monogamy never disputed its virtue; nor did those who followed that virtue look down upon those who did not. Sri Rama was monogamous, but his father, Dasharatha, was polygamous. Yet, Rama revered him; obeyed him totally. Rama is therefore regarded, besides being an ideal being, an ideal son as well. But Prahlada defied his father; he is regarded as an ideal person, though some may not see him as an ideal son like Rama. Likewise, Sita obeyed her husband; but Meera defied hers; and yet both are accepted as great. Obeying one’s husband or one’s father or being monogamous was held as a high virtue. Even the more macro idea of “ahimsa paramo dharma”, namely “non-violence is the highest value”, was regarded as a virtue of those only who had renounced the world; and not for householders and others. So the society was ruled more by a hierarchy of virtues and illustrative conduct than by law. What is correct was never judged by how many people adhered to it; but how virtuous it was and regarded by all as such.

    Tolerance for the deviants from generally accepted human conduct is part of the Indian ethos. Here, the society would wisely ignore the marginal deviants rather than punish them, even discuss them—a more subtle, sensible social management principle. The society felt, even now feels, shy to discuss them. That is why the traditional religious scholars have refused to be drawn into the current debate on the issue. In the Indian tradition, homosexuals, as elsewhere, were thus regarded as deviants. But, here, unlike in the Abrahamic, the right of these deviants to exist without being punished was never denied; and will never be. Yet no one can argue here or elsewhere that homosexuality is a virtue. No law or court of law can declare it as a virtue. That is the crux of the debate; and that is what is being obfuscated.

    QED: The Delhi High Court ruling held only one part of Sec 377 as unconstitutional. But what part is held constitutional—that is, what act of homosexuality is still punishable—cannot be described without allowing the discourse to become shameless; without spilling filth in the discourse. So what is not being described as shamelessness should yield to shyness. But, the media, particularly the visual, has been purveying needless filth using the issue for quite some time now. And growing shamelessness is replacing dignified shyness that marks the public discourse. Is it fair to subject a shy society to a shameless debate?

    > S. Gurumurthy is an economic and political analyst, editor of the Tamil weekly Tuglak, and a part-time director of the RBI.

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