India’s Supreme Court Ruling

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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 The law is still in force and cannot be repealed or amended except by an act of Parliament.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.

A Gay Guy in a Turban

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Written by Randeep Singh

On December 15, 2013, Kanwar Anit Singh Saini attended the Global Day of Rage in Toronto to protest the Supreme Court of India’s upholding of Section 377 of the Indian Penal Code which criminalizes homosexual sex.  He kisses another gay man at the protest. Another protester holds a poster above them with two men and the word “pyaar” written in Urdu. The photo was posted on his Facebook page with the caption “proud to be illegal.”

It’s interesting that while many in the diaspora have condemned what has happened in India, fewer have bothered to reflect on homophobic prejudice and intolerance within their local communities. The photo of Saini kissing another man generated hateful comments on Facebook from within the diaspora. Saini recalls on his Facebook page how his uncle once said the family would’ve killed Saini as a boy had they known he was gay.

South Asian GLBT persons like Saini continue to fight hate and intolerance within (and outside) their ancestral communities, including from “progressive” Indians, Pakistanis etc. Recently, I received a statement issued by a local South Asian group to the Indian Law Commission condemning the Supreme Court ruling. I was surprised to see the statement being lauded by people whom I have experienced homophobia from personally. I asked the group’s President that while I welcomed the statement, we’d do well to challenge prejudices in our backyard.

The openly gay former Indian prince Manvendra Singh Gohil said recently in an interview on CBC Radio that challenging Section 377 in India’s courts is one thing, but challenging Indians to open their hearts and minds is the greater struggle. That too is true here in Vancouver, as well as in Toronto, London, California and Queens. Saini has helped us all in that struggle by reminding us that GLBT South Asians are here and will keep up the fight.

The Union of India vs. Gay, Lesbian, Bisexual and Transgendered Indians

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Written by Randeep Singh

The Supreme Court of India has upheld section 377 of the Penal Code of India, which characterized homosexual sex as “against the order of nature.” The decision reversed a 2009 ruling of the Delhi High Court which had ruled that the law violated constitutional rights to equality and personal liberty.

To clarify, Section 377 was never abolished by the Delhi High Court: it has remained the law in India, including New Delhi. The Delhi High Court decision was only binding in that Union Territory and no where else in India. The law can only be abolished by Parliament, not by any court, including the Supreme Court of India.

As for the problems with the decision.

First, the Supreme Court’s otherwise correct statement that only Parliament can amend the law, overlooks the historical importance of the Supreme Court of India in upholding the fundamental rights and freedoms of Indians despite the state. The Supreme Court has interpreted rights and freedoms expansively to include the right to education, the right to work with dignity and on behalf of socially disadvantaged including the poor, women and backward castes. It has historically been the Supreme Court of India which has persuaded Parliament to enact socially inclusive laws, not vice-versa.

Second, the Supreme Court held that “a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or trans-genders.” How did the court come to this determination? How many Indians are in the closet? Is not one person enough to challenge a law as unconstitutional? Moreover, the Supreme Court of India has historically upheld the rights of a vulnerable social group from the excesses of more dominant social groups, as it has done in the case of backward classes, the poor and women. Why has it failed to do so now?

Third, the Supreme Court holds that Section 377 criminalizes certain acts and not sexual orientation. Under this logic, Indian homosexuals are not breaking the law so long as they do not engage in sexual intercourse. There is no separation between the act of sex and one’s sexual orientation. Legally prohibited from having sex, India’s homosexuals will have to either think twice before getting intimate with their partners or they will have to go further underground. It is a clear case of discrimination based on sexual orientation.

I’m reminded of the Supreme Court’s decision in 2005 when it refused the appeal of Afzal Guru (who was convicted of the December 2001 attack on the Indian Houses of Parliament). The court ruled that the “collective conscience of the society will only be satisfied” if Afzal received the death sentence. In this case too, the Indian Supreme Court has sought to appease the collective “moral” conscience of society, represented in this case by conservative religious bodies, supported in the recent past by senior leaders of the BJP like the late B.P. Singhal who argued homosexuality was against the ethos of Indian culture.

Section 377 remains law, but change will come eventually. Just before posting this piece, I read that Sonia and Rahul Gandhi have criticized the ruling and that India’s Law Minister has stated the government has not abandoned efforts to make homosexuality legal. The law has changed for other socially disadvantaged groups in the past and the composition of the Supreme Court and Parliament is changing. Legal reasoning is dynamic and new precedents can be set. More than anything, the GLBT community in India, and its supporters locally, nationally and internationally will keep moving forward. The moment hasn’t come yet but the destination beckons.