HAPPY 377 READ DOWN DAY, EVERYONE! In a rare piece of absolutely fabulous news, on Thursday, September 6, the Indian Supreme Court officially decriminalized homosexuality.
Technically, the Court “read down” Section 377 of the Indian Penal Code to exclude consensual sex. Implemented in 1860 under British official Thomas Macauley, Section 377 outlawed “carnal acts against the order of nature”—meaning any sexual activity that isn’t heterosexual, penetrative vaginal sex. For 158 years, the law has been used in India to harass, persecute, and imprison queer people, especially transgender and third gender people, and sex workers.
That is, until now! In a landmark decision, the Indian Supreme Court, in the form of a five-judge Constitution Bench, declared that it was unconstitutional for Section 377 to criminalize consensual sex between adults. The ruling does preserve the part of Section 377 criminalizing bestiality and sex with children. The Judges’ opinions touched upon the constitutional right to equality before the law, the fundamental right to autonomy and privacy, and the right of minorities to equal citizenship regardless of popular morality. Opening up the possibility of future rights guarantees for the LGBT community, Justice DY Chandrachud wrote in his opinion:
Members of the LGBT community are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution. Members of the LGBT community are entitled to the benefit of an equal citizenship, without discrimination, and to the equal protection of law.
This decision comes as a result of over a decade of struggle by the queer community, feminists, and rights activists, reflecting the much longer legacy of feminist and queer struggle in India. It’s been a windy road. Section 377 was initially “read down,” or decriminalized, by the Delhi High Court in 2009. That decision prompted severe backlash from conservatives, notably from many members of the Hindu nationalist political establishment, including one politician who labeled homosexuality “illegal, immoral and against the ethos of Indian culture.”
In a major blow, a 2013 Supreme Court judgement reversed the 2009 Delhi High Court judgement, drawing on popular prejudice to once again render queer sex a crime. “While reading down Section 377, the division bench of the HC overlooked that a minuscule fraction of the country’s population constitute lesbians, gays, bi-sexuals or transgenders [sic],” the decision read. That “minuscule minority” responded with protests and a curative petition, or a petition seeking to return the case to the Supreme Court for review by a five-judge Constitution Bench.
The Supreme Court’s reading down of Section 377 is a beautiful, historic, vastly important moment for LGBT Indians. It also, hopefully, will set a precedent for future affirmations of the rights of minorities. One sentiment from the judgement in particular has come to the attention of rights activists: The judges cited a line from the ruling in the Supreme Court’s 2017 Right to Privacy case that reads, “The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion.”
In the contemporary global political climate, it’s a desperately-needed reminder. Under the current Hindu nationalist government in India, mob lynching of minorities has increased, as members of the dominant population target mostly Muslim and Dalit (members of the most oppressed caste) people. Majoritarian morality or “tradition” have also been cited to limit women’s dignity and autonomy and persecute couples who marry across religion or caste, as in the 2017 Hadiya case, in which the right of an adult woman to choose her spouse was eventually affirmed by the Supreme Court.
Meanwhile, the “collective conscience,” or majoritarian morality, has long been cited by the Supreme Court itself to substantiate capital punishment, including in cases, like the 2013 hanging of Afzal Guru, that some rights activists still believe to be wrongly decided. As human rights lawyer Vrinda Grover wrote in response to the 2017 hanging of the men convicted of the 2012 Delhi Gang rape, which was condemned on principle by activists opposed to the death penalty, “If ‘collective conscience’ is invoked as a reasonable ground, how will communal attacks, fake encounters, public lynching of Dalits and now Muslims, all enjoying social endorsement, be held unlawful?”
For me—and many of the friends and activists I’m talking to—this point resonates most. Queer people, all queer people, are entitled to the right to life, dignity, and equality regardless of what the majoritarian morality thinks of us. That’s not because we’re special: that’s because all people—all people—are entitled to the right to life, dignity, and equality. Regardless of who we are, what we’ve done, where we come from. Regardless of how the majority feels. The point of rights—and the thing that makes both the Indian and the American Constitutions tools in the struggle for social and economic justice despite their many flaws—is that rights are not based on majority rule. They are inalienable. And they are for everyone.
Of course, there is always more to do. Hierarchies of class, caste, religion, and gender identity haunt the Indian LGBT community as they do communities worldwide. And the framework of privacy falls short when it comes to issues of economic justice and public space—what does the right to have sex in private do for the many queer Indians who live, and have sex, on the streets?
But right now, as joy and color fill the streets across India, it’s time to celebrate.
Read the original post on Feministing. Cover photo: Delhi Pride 2017, courtesy yours truly.