“History owes an apology to the members of this community and their families … for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution.” With these words, Justice Indu Malhotra, one of the judges of the Indian supreme court, held that section 377 of the penal code, which criminalises consensual sexual acts between adults of the same sex, was unconstitutional.
As one of the lawyers involved in a previous constitutional challenge to section 377 before the Delhi high court and the Indian supreme court, I know how important today’s judgment is. By ruling against the colonial-era law, the court delivered a powerful riposte to institutionalised disgust and contempt aimed at the LGBT community in India.
Disgust and contempt have been central themes of section 377 since its inception. In 1830 Thomas Macaulay, the main drafter of the penal code, called homosexual sex “odious” and “revolting”. In 1884, a court in north India ruling on the prosecution of a hijra (a member of South Asia’s traditional transgender community), commented that a physical examination of the accused revealed she “had the marks of a habitual catamite” and commended the police’s desire to “check these disgusting practices”. In 1934, a judge in Sindh (now Pakistan) described a man who had consensual sex with another man as “a despicable specimen of humanity”. In 2003, the government of India said that decriminalising homosexuality would “open the floodgates of delinquent behaviour”. And in 2013 a supreme court ruling on an earlier challenge to section 377 (overruled by today’s judgment) held that LGBT people constituted a “minuscule minority” who bore only “so-called rights”.
This contempt had and continues to have real consequences. In the 1990s, the HIV/Aids epidemic arrived in India, linking homosexuality in the public mind with disease and contagion. In 1992, the Delhi police arrested 18 men in a park as part of a “clean-up” drive. The allegation was not that they were having sex but “were about to indulge in homosexual acts”.
A 2003 report by a civil liberties group in Bangalore provides gruesome testimony of a hijra sex worker who was first gang-raped by a group of men and then gang-raped by the police. In 2006, the Lucknow police raided the offices of an HIV/Aids outreach organisation on the grounds that it was abetting the commission of a section 377 crime. Testimonies provided to the Delhi high court in 2007 documented how a gay man abducted by the police in Delhi was raped by police officials for several days and forced to sign a “confession” saying “I am a gandu [a derogatory term, meaning one who has anal sex]”. And in Haryana in 2011, two women were beaten to death by one of their nephews for being in an “immoral” relationship. This is not even to mention the harassment, blackmail and ostracism faced by LGBT people on a daily basis. While in a narrow sense today’s judgment is about section 377, it is so much more than that. Like the LGBT movement in India, this case was borne out of the need to address everyday, structural and endemic forms of violence.
Out of context, the words used in today’s judgment, like privacy, dignity and equality, can seem anodyne. In fact, they lie at the core of what it means for our communities to survive. Earlier this year, a lesbian couple jumped to their death. In notes left behind, they are reported to have written: “We have left this world to live with each other. The world did not allow us to stay together.” Today’s judgment makes it possible that people may no longer see fear in the future, but hope.
• Mayur Suresh is a lecturer in law at Soas, University of London. He previously practised law in Delhi and Bangalore, India