Chief Justice Dipak Misra had noted that Section 377 had been used as a legal pretext for the systematic oppression of the country’s LGBTQ community. He’d even gone as far as to call it “unconstitutional”.
Ten months on, India’s LGBTQ community decided to mark the landmark judgment with something truly unique—it’s now got its very own Pride Anthem, featuring former Mr Gay India and singer Sushant Divgikar and a transgender dance group Dancing Queens.
Also, late last month, director Faruk Kabir’s Zee5 Original 377 Ab Normal released, never mind the mixed reviews it’s received.
Has there, however, been any meaningful change on the ground for the community?
Mumbai inaugurated India’s first LGBTQ clinic and HIV treatment centre last month, but that was courtesy the Humsafar Trust, which has anyway been fighting for the community’s rights for years.
How about our politicians and their parties? Anything from them?
If Section 377 is the excuse for not working for the marginalised community until now, the future doesn’t bode well either—none of the major parties have focused on LGBTQs in their manifestos for the upcoming Lok Sabha elections.
This, then, begs the question ‘Has anything truly changed since the repeal?’
Such a long journey
Section 377 was introduced in 1861, while India was still under British rule. Its violation meant imprisonment, even a life term, and a fine. Britain imposed it on all its colonies, including Singapore, where it exists even today.
India’s battle for its repeal goes back 20 years. In late 1991, the AIDS Bhedbhav Virodhi Andolan (ABVA), which fought against discrimination of those affected by HIV/AIDS, released a document detailing the experiences of gay people in India. It revealed the appalling extent of blackmail, extortion, and violence they faced, especially at the hands of the police. However, when it was released at the Press Club of India, its tabling failed.
Three years later, in May 1994, Kiran Bedi, then inspector general of Tihar jail in Delhi, refused to provide condoms to inmates, saying it would encourage homosexuality. ABVA then filed a writ petition in the Delhi High Court, demanding free condoms and recognising Section 377 as unconstitutional. However, HC dismissed the petition seven years later.
In 2001, the Naz Foundation, a sexual health NGO working with gay men, filed a public interest litigation in Delhi HC, challenging the constitutionality of Section 377 and calling for decriminalising homosexuality. Three years later, the court dismissed this too. However, Naz Foundation persisted and, in February 2006, filed a special leave petition.
The SC reinstated the case in Delhi HC on the grounds that it was an issue of public interest. In the months that followed, Voices Against 277, a coalition of NGOs, joined the petition, while India’s Ministry of Home Affairs filed an affidavit against the decriminalisation.
Misses and then the hard hit
The first concrete step towards decriminalising homosexuality happened in July 2009, when, in a landmark judgment, a Delhi HC bench decided to strike down Section 377. It said Section 377 violated the fundamental rights to life, liberty, and equality. However, it was back to square one four years later, when the SC overturned the HC judgment, saying Section 377 “does not suffer from the vice of unconstitutionality, and the declaration … of the High Court is legally unsustainable”.
From June 2016, events began speeding up towards the eventual repeal. Navtej Singh Johar, an award-winning Bharatanatyam dancer, along with four other high-profile personalities filed a writ petition in the SC, challenging Section 377. The nine-judge bench that heard the petition in August 2017 ruled that privacy is a fundamental right, sparking hope in activists and community members that change was around the corner.
More high-profile individuals joined the campaign, and in July 2018, a five-judge SC bench, which included CJ Misra, began hearing the petitions against Section 377. Two months later came the historic verdict.
Legal reform vs change in mindset
In a social issue such as this, it’s not enough for changes to take place only at the legal level. The attached stigma needs removing along with decriminalising homosexuality.
Three months after the repeal, Mint Lounge reached out to members of the community in India to understand the ways in which the change in the legal status has affected their physical, mental, and professional well-being. While some felt stronger to face the daily micro-aggressions thrown at them at schools, colleges or work, for others, the novelty of the repeal had worn off, as social structures continued to crush their hopes of being able to live a life of dignity and equality.
Judicial reform is one thing, but societal realities don’t shift in an instant.
As a 28-year-old school teacher in Kolkata, one of those Mint Lounge interviewed, asked, “Will someone, who hasn’t been able to express their sexuality for, say, years, be able to overcome this ‘taboo’ overnight?” And that’s the truth. If you were always made to believe that not being heterosexual made you “wrong” in some way, how difficult is the process of coming to terms with yourself?
Kar, who came out as a transwoman in 2014 and won a legal battle against the state of West Bengal in 2017 to include the third gender in application forms for all public offices, had this to say: “When I underwent a sex reassignment surgery a few years ago, I already knew that if you want to have a revolution, you have to start it at your home.”
The law can change from above, but society must, too, in its most fundamental structures below.
How does the rest of the world fare?
In England and Wales, Conservative peer Lord Arran proposed in the House of Lords in 1965 the decriminalisation of male homosexual acts.
The Sexual Offences Act was passed in 1967 and received royal assent. While it maintained general prohibitions on buggery and indecency between men, it provided for a limited decriminalisation.
In 2000, the European Court of Human Rights overturned the restrictions. In Scotland, Section 80 the Criminal Justice (Scotland) Act 1980 gave the same legalisation, while in Northern Ireland, this came after a determination of a European Court of Human Rights case in 1982.
In the European Union in general, LGBTQ rights are protected under treaties and laws. Same-sex sexual activity is legal in all EU states and discrimination in employment banned since 2000. So far, same-sex marriage is constitutionally banned in only seven of the 28 (soon to be 27) EU member states.
In the US, the situation dates back to early 1970s. In 1996, then president Bill Clinton signed the Defense of Marriage Act, banning federal recognition of same-sex marriage and defining marriage as “a legal union between one man and one woman as husband and wife”, much to the LGBTQ community’s outrage.
Same-sex marriages were unevenly recognised throughout the US until recently, in July 2015. Following a Supreme Court ruling, it was determined that states must licence and recognise same-sex marriages, after which they became legal in all 50 states.
India vs Asia
While India woke up late to the legalisation of same-sex relations compared to the West, it’s ahead of its Asian counterparts.
However, in February 2019, Taiwan became the first in Asia to propose a draft law on marriage equality for same-sex couples.
At least 20 countries on our continent outlaw same-sex sexual activity; seven countries punish homosexual activity with the death penalty. In fact, Singapore, which shares the same Section 377 (as S377A) from colonial times as India, is yet to repeal the law. Following India’s decriminalising of homosexuality, for two months, fiery debates appeared on news channels voicing authority’s views on the issue.
Warnings against discrimination are like whispers underneath a dominant discourse, when law and society grants it a “criminal” status. The first ever court cases regarding repealing S377A entered the Singapore Supreme Court in December 2018, but the social buzz has almost died down and is unlikely to re-emerge until the next Pink-Dot Movement. So, while India has joined the more progressive half, it needs to do a lot more to protect LGBTQ rights and ensure that the momentous repeal of Section 377, which is the beginning, doesn’t become the end.
Skylar Cheng Geyu is a Writing Analyst at Qrius.