India's gay sex ruling met with global outrage

Section 377, introduced in 1861 during British colonial rule in India, prohibits sexual acts that are vaguely summed up as “carnal intercourse against the order of nature” but provides no further explanation. A strict reading of the code suggests that certain acts and not people are proscribed. However, the law has been used almost exclusively to harass, threaten and blackmail individuals perceived to be homosexual. The seemingly nuanced distinction between acts and people does not withstand scrutiny.

The litigation against Section 377 began in 2001 when the Naz Foundation India, a Delhi-based nonprofit that works on HIV/AIDS, filed a public-interest litigation after it repeatedly faced the threat of Section 377 for allegedly promoting homosexuality with its health-outreach work among queer populations. Naz, in consultation with various communities, challenged the law in the Delhi High Court, saying that it was an impediment to health-outreach work and health care access and that it violated the human rights of those with alternative sexualities. In 2006, Voices Against 377, a coalition of LGBT and allied groups from across India, joined the lawsuit, adding more urgency to the fight against Section 377.

On July 2, 2009, the Delhi High Court legalized same-sex acts and identified LGBT people as a minority that needed to be protected by India’s constitution. The justices invoked constitutional law to argue that the Section 377 of the penal code violated the citizens’ dignity, equality and freedom guaranteed by Articles 14, 15 and 21 of the Indian constitution. Their judgment included a nuanced reading of Article 15, which speaks about the right to nondiscrimination on the basis of, among other things, sex. It pressed for an expanded understanding of this category to encompass sexuality and sexual orientation.

In that landmark judgment the justices clarified the distinctions between constitutional and popular morality. They identified India’s constitution as an important countermajoritarian force, ensuring that fundamental rights are not violated in the interests of affirming public morality. “Popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21,” the justices wrote. “Moral indignation, howsoever strong, is not a valid basis for overriding individual’s fundamental rights of dignity and privacy.”

This monumental ruling soon came under challenge. Several groups and individuals, including Hindu upper-caste organization Krantikari Manuwadi Morcha, the Delhi Commission for Child Rights and a number of Christian and Muslim organizations filed an appeal with the Supreme Court, saying that homosexuality was alien to Indian culture and allowing it would destroy family and religious values, rend the moral fabric of the nation, spread HIV/AIDS and endanger children. The government of India, a respondent in the Delhi court case, did not challenge the judgment.

Reversing the 2009 ruling last week, the Supreme Court justices argued that “Section 377 IPC does not suffer from the vice of unconstitutionality” and concluded by stating that the fact that it “has been used to perpetuate harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community” cannot be blamed on the law.

For years, LGBT people in India have witnessed gross violations of our rights because of our sexual orientation and whom we choose to love. We have also campaigned and protested against Section 377 for several years by speaking out against it in the media, by making it a focus of our statements during the pride parades and by holding public events, discussions and performance and film festivals. Despite the risks involved in being out and open, queer Indians are protesting on the streets, providing psychosocial support to one another and reaching out to parents for solidarity.

The Supreme Court’s judgment rests on a very dubious assertion that “a minuscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders,” apparently far too insufficient to be considered a class of people subjected to discrimination. Relying only on the number of prosecutions under this section of criminal law and in dismissing charges of misuse as mere problems of implementation, the judgment has failed to take into account the ways in which such a law curtails human liberty and has been used to threaten, harass and blackmail LGBT people. It is not an oversight; the judgment consciously views such curtailment as justified in the interests of “morals or protection of rights and freedom of others.” It maintains that “Section 377 of IPC does not suffer from the vice of unconstitutionality” and that the Delhi High Court’s judgment was “legally unsustainable.”

The decision has rightly been met with howls of protest online and all over India. The LGBT community and supporters responded by launching a Gay for a Day campaign on social media, asking Facebook users to post pictures kissing someone of the same gender. Thousands of photos and slogans supporting gay rights in India were uploaded by activists from around the world. Meanwhile, in Delhi, the nation’s capital, hundreds of activists took to the streets admonishing the court ruling.

In a campaign called Global Day of Rage Against Supreme Court Verdict on 377, various cities in India and around the world joined to express outrage and solidarity. Protests took place at the University of Michigan at Ann Arbor, opposite the Holocaust Memorial in Berlin, in Castro Valley near San Francisco, at the Indian Embassy in Washington, D.C., and other places. A number of Indian political leaders have spoken out against the verdict. The government of India has already filed a review petition in the Supreme Court, challenging the verdict. The petition argues that the Supreme Court’s judgment on the 377 case “is contrary to well-established principles of law laid down by this court enunciating the width and ambit of fundamental rights under Articles 14, 15, and 21 of the constitution.”

Through this judgment, the Indian judiciary has chosen to defer to the government on such sensitive and urgent issue. This is baffling to all those who have observed the activist role that India’s judiciary has played in the recent past in overturning outmoded laws. There is some dark humor there. But this is yet another reminder that legal reform is not an alternative to a social movement. And that successful legal change does not always lead to social change.

Queer communities in India have faced a terrible setback with this decision. It has been shocking and unsettling for those who saw LGBT activism in India and the 2009 verdict from the Delhi High Court as signs of future strides into a queer freedom. It is, definitely, also a tremendous setback for all our work aimed at moving toward securing protection for LGBT people against discrimination in education, employment, health care, housing and other sectors. I dread to think of the ammunition this judgment might provide to those who spew hatred and bigotry against LGBT people in the name of religion, sexual morality and cultural values.

However, the only way to move ahead is to view the Supreme Court’s verdict as a chance to come together and forge a stronger social movement with other minority groups and campaigns. It is a time to consider seriously the charges of elitism that have been leveled against the campaign against Section 377 that have argued that the LGBT movement is driven by the interests of middle-class, English-educated gay men. The best way to respond to these claims is to engage meaningfully with issues of class, caste, gender, sex work, language barriers, urban-rural divides and the wide gaps in the quality of queer-rights discourses between English and regional Indian languages.

Although I am committed as ever to this fight, I must confess to deep sadness about the Supreme Court’s judgment. Sitting far away in Austin, Texas, on the day of the ruling, I felt alone and anxious. Through a pithy text message from Chennai, India, my father eased me into the shocking developments. Soon afterward, my mother, very upset, called me on the phone and kept apologizing tearfully. I guess it was a gesture of true commiseration, yet I could not help wondering what they were apologizing for and to whom.

Did they feel that the Supreme Court of their country had let me down? Were they already sensing the way in which queer people were rendered “other” by this verdict, so much so that they felt ashamed and guilty for not being criminals in the eyes of the law for whom they love and how they make love?

The Supreme Court’s verdict has left them with two possible perspectives: Now either they have a queer member of the family who has been unjustly victimized by the law or they are harboring a criminal. Despite my innumerable issues with the institution of family and the complicated affair that is parental love, I think this is truly a painful emotional moment for many parents across India.

And I hope they choose to see the injustice of the law and speak out against it in whatever way they can. After all, the first spaces in which LGBT people are a minority are within our families. It is crucial at this time for families to step up and show love, acceptance and support.