Amrit Dhillon is a New Delhi-based journalist.
Barring any major upset, India is set for a historic Supreme Court ruling that will overturn the law that criminalizes gay sex. The British Raj ended in 1947, but India has ironically kept this policy, a relic of the rigid Victorian morality imposed on a country that had, at some points in its history, a more tolerant view of homosexuality.
Famous erotic images on Khajuraho temple include women embracing other women and men displaying their genitals to each other. There are examples in ancient Indian epic poetry of same-sex depictions and unions by gods and goddesses. Yet today, India stands alongside Saudi Arabia and Somalia in criminalizing homosexuality.
When, not if, the Supreme Court ends the archaic law that dates back to 1861, the hard work of gay, lesbian and transgender activists, fighting in the courts for 20 years, will have paid off.
Throughout last week’s hearing, the Court has heard how the law has haunted homosexuals who feared exposure at every turn. What job to take, where to live, where to go out, who to socialize with, who to be honest with, were all choices made under the shadow of Section 377, in which homosexual sex can lead to a jail sentence of 10 years.
Four years earlier, in 2009, the Delhi High Court ruled that gay sex should be legal. It only applied to the capital city, but the ruling was at least a start in dragging the law into the 21st century.
But in 2013, the Supreme Court irresponsibly reinstated the law on the grounds that only Parliament could decide the matter. The ruling was an aberration, turning back the clock on the freedoms of some of its citizens. Gays and lesbians had come out to parents, friends and employers. Suddenly, with the Supreme Court overturning the lower court’s ruling, their lives were illegal again. As one gay man said: “We could hardly rush back into the closet. It was closed.”
The Supreme Court otherwise had a superb and consistent record of progressive decisions on everything ranging from women’s rights to honour killings, divorce and caste. Last year, the Court tried to make good on its mistake by issuing a ruling that was clearly designed to pave the way to legalize gay sex later. The ruling said that privacy was a fundamental right of all Indians, adding sexual orientation was an essential attribute of privacy.
LGBTQ activists soldiered on and now are close to seeing victory. Luckily, this time, the government has told the Court that it has no intention of contesting the petitions. It has said the decision is up to the Court.
The atmosphere in the Supreme Court during the week-long hearing made clear which direction the case is going. One of the petitioners, journalist Sunil Mehra, who has lived with his partner Navtej Johar (also a petitioner) for 24 years, said that he could hardly believe that he was in India when he heard the arguments.
The emotion was palpable as the judges were told that the petitioners had lost many years to fear, years that could not be relived. But at least the Court could ensure that the next generation of homosexuals could live their lives in full.
In finally accepting homosexuality, India will be returning to its own, more accepting roots. Many other countries have gone further and legalized gay marriage. India is expected to legalize gay sex but go no further. The Additional Solicitor-General has said firmly that while the government will leave the decision to the Court, the latter should not venture into gay marriage, adoption or inheritance rights. Presumably, the fear is that this could be just a step too far for what is essentially a conservative and deeply religious society.
But the momentum will be hard to stop. Mr. Mehra believes gay marriage will probably become legal in the next few years. But first, let the Supreme Court fight for fundamental freedoms by abolishing Section 377. The crux of the matter is freedom – long overdue – for the country’s gay citizens, who will finally be free to come out of the shadows.