On September 6, 2018, the Supreme Court of India ruled that Section 377 of the Indian Penal Code was unconstitutional. The section – enacted in 1861 when India was still a British colony – effectively criminalized gay sex.
India’s LGBT communities erupted in euphoria. The Indian and international press joined in the jubilation with one BBC headline ringing, “India’s Supreme Court Legalizes Gay Sex … ”
The Supreme Court’s decision marks an important beginning for India’s LGBT and for the country. For India’s sexual minorities, it represents a victory in a long struggle against an inhumane and draconian law. For India, the ruling holds the promise of a new era where India starts to step out from the shadows of its colonial past.
I too was euphoric after reading the headlines only to confront a few sober realities.
First, the Supreme Court of India ruling has not legalized gay sex. It has declared that the law discriminated against LGBT sex is unconstitutional. The law is still in force and cannot be repealed or amended except by an act of Parliament.
Second, as long as it remains on the books, the section will continue to be invoked. Certainly, a better off and well-informed gay Indian will now challenge a policeman who tries to lay a charge. But those LGBT Indians who are poor, working class or villagers are less likely to contest the enforceability of the law.
Third, the ruling leaves untouched the more basic challenges facing India’s LGBT communities. In particular, the ruling does not recognize India’s LGBT communities as legal persons who can claim basic rights or freedoms as any other Indian. It has brought India’s LGBT persons out of the shadow of criminality, without making them persons under the law.
If anything, the Supreme Court ruling stands for the same principle that Canadian Prime Minister Pierre Trudeau made back in 1967 that “there’s no place for the state in the bedrooms of the nation.” Tushar Mehta, the Assistant Solicitor-General for the Government of India, has otherwise made it clear that the Government of India will construe the ruling narrowly so as not to accord legal status to the LGBT citizens of India in terms of marriage, property rights, government benefits or inheritance.
India’s LGBT communities have just won their first battle against the state, but their war for recognition as equal citizens under the law has yet to begin.