Indian Supreme Court’s recent landmark judgment means that millions of LGBT people are no longer ‘criminals’ as a result of their identities.
Indian members and supporters of the lesbian, gay, bisexual, transgender (LGBT) community celebrate the Supreme Court decision to strike down a colonial-era ban on gay sex, in Kolkata on September 16, 2018. (AFP)
- I know only too well what a curious thing it is to be criminalised for who you are as a person. As a lesbian woman from Sri Lanka, this reflects my life’s experience. You know that you are not completely free; that your private life is not private
- This is why the Indian Supreme Court’s ruling on Thursday, September 6 is such a delight to read. The human rights case is crystal clear. When you read thoughts exacted by brilliant legal minds, , it is difficult to see why the law was allowed to exist for as long as it did
What a great moment to be South Asian. In fact, what a time to be alive!
Last week the Indian Supreme Court’s five-judge bench found that Section 377 of the country’s Penal Code, which criminalised same-sex intimacy, was ready for the scrapheap. This means that, for the first time in a century and a half, it is no longer a crime to be LGBT and in a relationship in India.
The petitioners in the case, including artists, business people and journalists, who successfully challenged the lawfulness of Section 377 have achieved something monumental, which will make a global impact. On a personal level, I have felt such great joy and pride to see our Indian sisters and brothers turn great adversity into positive change.
While we are still digesting the full significance of this decision, the effects of which I believe will ripple on for generations, there are some facts that put it into context. This is the world’s second most populous country, the largest democracy on the planet, which has made a seismic change in its law. Due to the size of the Indian population, it is no hyperbole to say that literally millions of people were no longer criminalised overnight. In fact, one fifth of all the people in the world who identify as lesbian, gay, bisexual and transgender (LGBT) are in India – and therefore directly afforded a new freedom they will never have had in their lifetime.
I know only too well what a curious thing it is to be criminalised for who you are as a person. As a lesbian woman from Sri Lanka, this reflects my life’s experience. You know that you are not completely free; that your private life is not private. LGBT people in countries that criminalise them, as India did and Sri Lanka still does, must live a life consigned to the margins and shadows. What is ordinary and unremarkable becomes secret and shameful. We are unprotected by a state that is supposed to protect us; we are victimised by a criminal justice system that we should be able to rely on for security.
No sensible argument to retain it
This is why the Indian Supreme Court’s ruling on Thursday, September 6 is such a delight to read. The human rights case is crystal clear. When you read thoughts exacted by brilliant legal minds, who have put such depth of thought into their exceptionally well-reasoned decision, it is difficult to see why the law was allowed to exist for as long as it did. There was never a sensible argument for keeping it.
One passage from the judgment asserts: “The LGBT community [possesses] the same human, fundamental and constitutional rights as other citizens do since these rights inhere in individuals as natural and human rights. We must remember that equality is the edifice on which the entire non-discrimination jurisprudence rests. Respect for individual choice is the very essence of liberty under law and, thus…. Section 377 is irrational, indefensible and manifestly arbitrary.”
Another looks forward, saying: “We have to bid adieu to the perceptions, stereotypes and prejudices deeply ingrained in the societal mindset so as to usher in inclusivity in all spheres and empower all citizens alike without any kind of alienation and discrimination.”
Of course we, in Sri Lanka, share the same shackles of a colonial past, including our own homophobic laws: Sections 365 and 365A of the Sri Lankan Penal Code. What we don’t share, sadly, is the means to tackle it through the courts; our constitution will not allow such a challenge. So it is that we continue holding on to that particular remnant of the British Empire.
Win for decolonisation
The ruling in India is not only a win for human rights and the LGBT population, but for decolonisation. The widespread misrepresentation that homosexuality is some sort of Western import is not only untrue – it is the opposite of the truth. Instead, it is the laws targeting LGBT people that can be traced back to the colonial power of the nineteenth century. In fact, British Prime Minister Theresa May recognised as much in April of this year, when she used her chairmanship of the Commonwealth Heads of Government to publicly apologise for her country’s part in exporting these hateful laws.
Although the laws arrived with the British such a long time ago, the Indians’ example, while ultimately leading to success, illustrates what a long road it is to be rid of them. The first challenge to Section 377 was launched almost two decades ago by local civil society organisation the Naz Foundation. They achieved a landmark progressive ruling at the Delhi High Court in 2009, which was widely hailed as a watershed moment. This victory was to be shortlived, however, as the ruling was overturned at the Supreme Court in 2013, signalling a return of the criminalisation of same-sex relations.
What the activists, lawyers and their supporters have achieved in India is both immediate in its impact, and historic in its significance. No praise is high enough. During the long and laborious fight, they will have encountered any number of barriers and setbacks. At times they may have felt hopeless. Yet, here we are, dissecting a ruling that is effectively a life-changing stride forward for humanity.
Literally millions of LGBT people are no longer ‘criminals’ as a result of their identities. Their time in the shadows is over; they can come out and celebrate. And we should celebrate alongside them.