As the sun was going down on the evening of the 5th of September, nervous tension was building up on social media. News had just broken — the Supreme Court was going to pronounce its verdict on the fate of Section 377 the next day.
In what could be seen as a reflection of the feelings of millions of LGBTQI Indians, the mood on social media was of anxious anticipation. Will the 6th bring relief to the sexual minorities, finally, or will it be just another setback, a replay of the court’s earlier stand — on a bleak December day in 2013 — that had revoked our right to personal freedom, recriminalising consensual sex between two non-heterosexual adults. For us, this wait was the most excruciating yet.
The shadow of Section 377
The Indian Penal Code carries many a severely outdated law, formulated under a different era of morality standards. Section 377 is a prime specimen of that colonial legacy. And while Britain junked such an oppressive code, India held on to it like a churlish child to a broken, irreparable toy.
Many argue that the law was seldom applied to sexual minorities, but that does not condone the times it was. The fact that it existed meant a constant threat of penal action. And blackmail, extortion, harassment — physical and emotional. Many of those cases went unreported because of the inherent stigma, prevalent prejudice, and shame.
When activists and lawyers took up the legal fight to put an end to it, the initial reactions were of mockery, dismissal, and even disbelief on the part of the heterosexual majority.
There were those that firmly believed homosexuality never existed in India, and that such a notion was a Western import out there to corrupt the pristine and ultra-pure Indian culture. This same set would often squirm uncomfortably every time someone said sex, and Khajuraho, in the same breath or otherwise.
And largely, people tended not to know, or forget that Section 377’s tentacles would not spare even the most hetero of the heterosexual, if someone chose to invoke it against them. So deep the association of the law had become with the LGBTQI, and hence those that challenged it in court were not only fighting for the emancipation of a people dubbed “minuscule minority” — their fight would also benefit the straight community by ensuring the right to privacy, and sexuality.
Back and forth
The state’s stand on the issue of homosexuality and alternative sexualities has never been favourable, regardless of whose government was in power. Leaders of various political parties have, time and again, displayed utter ignorance and/or downright homophobia in their statements. Representatives of religious bodies have fought hard against decriminalisation of the LGBTQI persons — in what has rightly been observed as a rare instance of unity among them; the only issue they’d bury the hatchet over.
So, when in July 2009, the Delhi High Court pronounced a landmark judgment in favour of the LGBTQI, the aforementioned united front jumped into action, seeking reversal in the Supreme Court. They won in 2013.
Curative petitions were filed, because we were not giving up. And this time, a large chunk of the nation stood by the LGBTQI when protests erupted against the ruling.
Fast forward to July 2018. Hearings on the petition began, with both sides making their arguments in Supreme Court. The government stated that it would not take a stand, and would abide by the court’s decision, thus conveniently remaining non-committal. This time, the Congress party, which had earlier assumed a similar fence-sitting position when it was in power, took a stand in favour of the LGBTQI, reflecting a change in the greater narrative overall the five years since 2013. Some quickly reminded people of the fact that the next general election was at hand, but right now, we can leave that open to another political debate, elsewhere.
Fighting the good fight
Back to the evening of 5th. As people far from the battlefield in New Delhi, we could feel, vicariously, the sense of eventuality our representatives in court were feeling. It is not right to sum up their thoughts, as they prepared to hear the final word, in second-hand words, sentences, paragraphs. For us, there was comfort in the knowledge that we had representation, and solidarity in the thought that this fight would not go in vain, regardless of the outcome.
Past precedents aside, this time the quantum of hope had expanded, in part due to the Supreme Court’s stand on another case related to the right to privacy, upholding it as a fundamental right.
And when the court pronounced its verdict, India took a step toward the present, unshackling itself from a stifling vestige of the nation’s colonial past. As of 6th September, 2018, the so-called minuscule minority (not so minor in its numbers and contributory power to the country) is no longer criminal for loving someone of the same sex.
Yet this is only a part of a larger battle the LGBTQI have to endure every day — with society, social discrimination, homophobia (tacit, explicit, and even violent), estrangement and ostracisation, and the trauma these factors inflict, at times leading to individuals taking their own lives. Countless of us still suffer in silence, with hardly any access to appropriate mental health facilities, counselling, or social support systems.
That said, we need to cherish this moment of victory. For history has been made in our lifetime, long overdue, and well-earned.
On the evening of 5th, the sun truly set on an oppressive legality to make way for the dawn of a new era of human rights in India, the dawn that witnessed love trump hate — in one fell swoop.
(The writer is a freelance writer and editor based in Goa)