[The Indian justices seemed well aware of the place they were taking in history. Nation after nation has been extending full rights to gay people under the law, and now India, as the world’s second-most populous country, stands, at least legally, among the more progressive.]
By Jeffrey Gettleman, Kai Schultz and
Suhasini Raj
NEW
DELHI — In a groundbreaking
victory for gay rights, India’s Supreme Court on Thursday unanimously struck
down one of the world’s oldest bans on consensual gay sex, putting to rest a
legal battle that stretched for years and burying one of the most glaring
vestiges of India’s colonial past.
After weeks of deliberation in the Supreme
Court and decades of struggles by gay Indians, India’s chief justice, Dipak
Misra, said that the colonial-era law known as Section 377 was “irrational,
indefensible and manifestly arbitrary.”
“We have to bid adieu to prejudices and
empower all citizens,” he told a packed courtroom.
The court said that gay people were now
entitled to all constitutional protections under Indian law and that any
discrimination based on sexuality would be illegal.
All around this country, explosions of
happiness erupted — and some of outrage, as well.
Gay people hugged, danced, kissed and closed
their eyes and cried on the steps of the high court in Bangalore. In Mumbai,
human rights activists unleashed a blizzard of confetti.
In their judgments, the justices said that
homosexuality was “natural” and that the Indian Constitution was not a
“collection of mere dead letters” and should evolve with time.
The Indian justices seemed well aware of the
place they were taking in history. Nation after nation has been extending full
rights to gay people under the law, and now India, as the world’s second-most
populous country, stands, at least legally, among the more progressive.
Human rights activists said they hoped this
decision would reverberate around the world.
“This ruling is hugely significant,” said
Meenakshi Ganguly, the South Asia director for Human Rights Watch. It could set
a precedent for nations with similar colonial-era laws to end their
“discriminatory, regressive treatment” of gay and transgender citizens, she
said.
The court said that Section 377, which was
written in the 1860s to cover what were then considered unnatural sexual acts,
would still be used in cases of bestiality, for instance, but that it could not
be applied any more to consensual gay sex.
The justices seemed moved by the stories they
had heard in court from the gay plaintiffs about harassment, blackmail, abuse
and persecution.
 |
|
A
pride march last year in New Delhi. Acceptance of gay, lesbian and transgender
people
has
grown in India, but the law known as Section 377 discouraged countless people
from
coming out. Credit Rebecca Conway for The New York Times
|
Menaka Guruswamy, one of the lead lawyers
representing gay petitioners, called Thursday’s decision a “huge win” with
important implications.
In the courtroom, Ms. Guruswamy said, the
mood was “optimistic, buoyant, very excited.” As the judges read out their
decision, the crowd tried to remain composed. Outside, a cheer went up and
people hugged tightly.
“This decision is basically saying, ‘You are
not alone,’ ” Ms. Guruswamy said. “The court stands with you. The Constitution
stands with you. And therefore your country stands with you.’ ”
But in many ways, India remains a deeply
conservative country, and hard-line religious groups on several sides — Hindu,
Muslim and Christian — condemned the ruling.
“It’s shameful,” said Swami Chakrapani,
president of All India Hindu Mahasabha, a conservative Hindu group. “We are
giving credibility and legitimacy to mentally sick people.”
India has a complicated record on gay issues.
Its dominant religion, Hinduism, is actually quite permissive of same-sex love.
Centuries-old Hindu temples depict erotic encounters between members of the
same gender, and in some Hindu myths, men become pregnant. In others,
transgender people are given special status and praised for being loyal.
But that culture of tolerance changed
drastically under British rule. India was intensely colonized during the height
of the Victorian era, when the British Empire was at its peak and social mores
in England were prim and often painfully proper.
This was when the British introduced Section
377 of the Indian Penal Code, imposing up to a life sentence on “whoever
voluntarily has carnal intercourse against the order of nature.” The law was
usually enforced in cases of sex between men, but it officially extended to
anybody caught having anal or oral sex.
Though in recent years more and more Indians
have come out, and acceptance of gay, lesbian and transgender people has grown
to some degree, the fact that intimate behavior was still criminalized created
much shame and discouraged countless Indians from coming out.
In hearings in July, lawyers argued that the
law was terribly out of sync with the times and legally inconsistent with other
recent court rulings, including one made last year that guaranteed the
constitutional right to privacy.
They pointed to similar old anti-sodomy laws
that had been toppled in the United States, Canada, England and Nepal, India’s
smaller and poorer neighbor. And they said that Section 377 had a long and ugly
history as a cover for blackmailing, harassing and sexually assaulting gay and
transgender Indians.
Occasionally, lawyers pushed beyond the legal
arguments and made pleas for judges to recognize the humanity of the
petitioners.
Ms. Guruswamy spoke of the decades-long
relationship between two older petitioners, Navtej Singh Johar and Sunil Mehra,
and the sacrifices the two had made to keep their partnership secret.
Ms. Guruswamy encouraged the judges to think
of all the young gay people who did not want to follow that road and spend
their lives hiding who they really were.
“Tell my young clients that their lives will
be different,” she pleaded. “The recognition of equal citizenship, that is the
business of life, so that they know they are loved, protected.”
During the hearings, the judges signaled that
they were ready to knock down this law. Justice Malhotra called homosexuality a
“variation, not an aberration.” And after a lawyer appearing for India’s
government tried to cut off Ms. Guruswamy, Chief Justice Misra said, “Let her
speak!”
Interestingly, India’s leading politicians,
who usually never resist an opportunity to weigh in on a hot issue, have mostly
stayed out of the debate.
Prime Minister Narendra Modi has said very
little about gay rights, despite the conservativeness of his governing
Bharatiya Janata Party on some social issues.
During the hearings in July, the central
government announced that it was not going to take a position on Section 377.
It was some of India’s Christian groups that
put up the most spirited defense of the law. Lawyers for these groups argued
that sexual orientation was not innate and that decriminalizing gay sex would
lead to the transmission of H.I.V.
Prosecution under the law was rare. But
still, many Indians feared that if they reported crimes like rape, they would
be the ones arrested. Some gay people have shared disturbing stories about
being raped by police officers and then threatened with jail time if they ever
came forward.
Section 377 has been in the cross hairs for
several years now, with the courts going back and forth on it. In 2009, a court
in New Delhi, the capital, ruled that the law could not be applied to
consensual sex.
But Hindu, Muslim and Christian groups then
filed appeals in the Supreme Court, and in 2013, the court restored the law,
saying that Parliament, and not the courts, should take up the issue. In its
judgment that year, the Supreme Court justified the ruling by writing that only
a “minuscule fraction of the country’s population constitute lesbians, gays,
bisexuals or transgenders.”
Activists regrouped. What they were looking
for were people brave enough to serve as plaintiffs and tough enough to
withstand intense scrutiny. In 2016, five gay and lesbian Indians submitted a
writ petition challenging Section 377 on the basis that it violated their
rights to equality and liberty.
The initial group included Mr. Johar, a
dancer, and his partner, Mr. Mehra, a journalist; Ritu Dalmia, a celebrity
chef; Ayesha Kapur, a businesswoman; and Aman Nath, a hotelier.
During the hearings in July, the central
government announced that it was not going to take a position on Section 377.
It was some of India’s Christian groups that
put up the most spirited defense of the law. Lawyers for these groups argued
that sexual orientation was not innate and that decriminalizing gay sex would
lead to the transmission of H.I.V.
Prosecution under the law was rare. But still,
many Indians feared that if they reported crimes like rape, they would be the
ones arrested. Some gay people have shared disturbing stories about being raped
by police officers and then threatened with jail time if they ever came
forward.
Section 377 has been in the cross hairs for
several years now, with the courts going back and forth on it. In 2009, a court
in New Delhi, the capital, ruled that the law could not be applied to
consensual sex.
But Hindu, Muslim and Christian groups then filed
appeals in the Supreme Court, and in 2013, the court restored the law, saying
that Parliament, and not the courts, should take up the issue. In its judgment
that year, the Supreme Court justified the ruling by writing that only a
“minuscule fraction of the country’s population constitute lesbians, gays,
bisexuals or transgenders.”
Activists regrouped. What they were looking
for were people brave enough to serve as plaintiffs and tough enough to
withstand intense scrutiny. In 2016, five gay and lesbian Indians submitted a
writ petition challenging Section 377 on the basis that it violated their
rights to equality and liberty.
The initial group included Mr. Johar, a
dancer, and his partner, Mr. Mehra, a journalist; Ritu Dalmia, a celebrity
chef; Ayesha Kapur, a businesswoman; and Aman Nath, a hotelier.
As the Supreme Court prepared to hear the
case, more than 25 other Indians with varied social and economic backgrounds
joined them.
Among those to file a petition was Anurag
Kalia, 25, an engineer living in Bangalore, who was once so afraid to say the
word “gay” that he practiced doing so in front of the mirror.
“I used to whisper it,” he said.
As the court prepared to announce its verdict,
Mr. Kalia checked his phone “like crazy.” After the ruling, he stepped out of
his office for a few quiet moments, feeling ready to celebrate, a bit numb,
unsure of what the future held, but also feeling “relief, relief.”
“It feels like there’s much more to come,” he
said. “This is just the first strike.”
