06/09/2018 3:47 PM IST | Updated 06/09/2018 9:32 PM IST

Section 377 Verdict: Supreme Court Decriminalises Gay Sex, Heeds Indian LGBT Community's Long Struggle

The Supreme Court's verdict accords judicial sanction to the lives and loves of millions of Indians

Hindustan Times via Getty Images
While big cities like Delhi and Mumbai have vibrant queer movements, the fear and discrimination is particularly acute in smaller Indian towns.

NEW DELHI — R, a young lesbian woman, was 19 when a story about a transgender protest on the evening news prompted a family discussion on queerness: Her mother said she would kill herself and her child if she found out R was queer. Her father nodded in agreement and passed her a plate of cookies.

The news broadcast ended and so did the conversation, but — six years later — R remembers that moment as a vivid illustration of the fear, stigma, and outright hostility that comes with being queer in India, where gay sex was a criminal offence under a colonial era law known as Section 377.

"I was taken aback when my mother mentioned killing, but not entirely surprised," R said. "They'd stone me to death in public if they knew I was lesbian. And I am not exaggerating even a little bit."

At a few minutes to noon this morning, the Indian Supreme Court decriminalised homosexuality, a ruling that comes as a reprieve to millions of Indians like R, who have lived in the shadow of fear for as long as they can remember.

"Section 377 is arbitrary. LGBT community posses rights like others," Chief Justice Dipak Misra said in his judgement. "Majoritarian views and popular morality cannot dictate constitutional rights."

Legalising homosexuality will not end the discrimination that India's queer community faces, but in Srinagar, said R, a positive signal from the courts marks a fresh beginning. While big cities like Delhi and Mumbai have vibrant queer movements, the fear and discrimination is particularly acute in places like Srinagar, Kashmir, where R grew up and continues to live.

"We can finally hope that there would be positive discourse around sexuality in popular culture which can in turn remove misconceptions and lead to societal acceptance," Anwesh Pokkuluri, one of the petitioners told HuffPost India.

"People are anyway terrified of coming out here," R said, "But if the highest court in the country rules in our favour, who knows if someone will get the courage to begin a movement?"

A Colonial Law

Section 377 of the Indian Penal Code is a colonial-era law that prescribes severe penalties for anyone who "voluntarily has carnal inter­course against the order of nature with any man, woman or animal". The law was rarely enforced, yet LGBTQ activists say it effectively rendered an entire section of Indian society invisible, and left them vulnerable to police harassment.

"The social life of the law invades your home, your family, your classroom, your hospital," said Gautam Bhan, a professor of urban planning, who has campaigned against the law since 2004. "We began the legal fight against 377 as part of a larger battle to tell stories about ourselves — stories that were about rights and not just about sex."

One of the earliest petitions against Section 377 was filed in 1994 by AIDS Bhedbhav Virodhi Andolan (ABVA), a collective working on issues of sexual health and the scourge of AIDS, especially among the gay community. ABVA wanted to distribute condoms to inmates of Delhi's Tihar Jail, India's largest prison, but jail authorities refused permission.

"The AIDS argument was the most compelling in favour of striking down Section 377," said Saleem Kidwai, a 67-year-old rights activist who closely tracked the movement. "Men who contracted HIV due to sexual relations with men could not seek medical help due to fear of being jailed. Even if they lied about their sexual activities, doctors would eventually figure out, and what if they reported them?"

Hindustan Times via Getty Images
NEW DELHI, INDIA - JULY 10: Krishna Reddy Medikonda (L), Akhilesh Godi(back row left), Anurag Kalia(back row right), Romel Barel (C) and Avnesh Pokkuluri (R), are among the 20 IITians whose writ petition challenging Section 377 is currently being heard in the Supreme Court.

The ABVA petition was rejected by the Delhi High Court in 2001. That year, Delhi-based Naz Foundation filed a fresh case against the archaic law. Their initial premise was also the fight against AIDS. Over the next five years, several more rights groups joined the legal battle.

In 2009, the Delhi High Court struck down provisions of Section 377, prompting wide celebrations amongst the community, only for the Indian Supreme Court to reinstate the law on appeal in 2013.

But the four intervening years of freedom, activist Bhan said, had completely transformed the movement from its legal beginnings, into a society-wide conversation about rights and freedoms.

"2009 to 2013 was a period of massive expansion," said Bhan. In the late 1990s and early 2000s, only a handful of gay people were willing to speak publicly. "Now an entire generation of young people who came out have a very different notion of their sexuality."

Anwesh Pokkuluri, a 25-year-old graduate of India's premier engineering school Indian Institute of Technology, Madras, would have been only 10 when Naz filed their petition. Today, he is part of a group of IIT students called Pravritti which moved the Supreme Court early this year, demanding that Section 377 be struck down.

"Even if Section 377 is read down, there is a long way for societal acceptance," Pokkuluri said. "Keeping this vulnerability in mind, we've requested the court to pronounce equality and non-discrimination, which will help us lead dignified lives in our country."

The long legal battle against the law resumed late last year when activists spotted an opening offered by a Supreme Court judgement in an unrelated case. While considering a spate of petitions on whether Indians have a right to privacy, the Supreme Court observed that:

"discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform."

"The order of nature is a relative concept," Justice Fali Nariman observed, "And for this sexual minority it is the order of nature."

Censoring Lives

The long legal battle to scrap Section 377 has extracted its price.

In 1996, far-right religious activists attacked theatres across India for screening Fire. The film, directed by Deepa Mehta, was one of the first movies to depict a sexual relationship between two women.

The attacks, Kidwai recalled, prompted the first significant public demonstration by the LGBTQIA community in Delhi.

"I remember the gathering outside Regal cinema protesting the actions of the religious fundamentalists," Kidwai said. "There was a woman in that protest holding a placard saying 'I am lesbian'. It was the first time I saw something like that in India."

Screenshot from Deepa Mehta's 'Fire'

Yet, even supposedly progressive spaces, such as publishing, continued to airbrush gay lives out of the mainstream conversation.

When Kidwai and academic Ruth Vanita edited an anthology of writings on same-sex love in India, sourced from ancient scriptures, most publishers refused to publish the book.

One leading publisher told Kidwai that they didn't want their offices attacked for publishing the book. Eventually, Macmillan published it in the United States in 2001. Once the book received positive reviews abroad, it was published in India.

Fighting Back

R, the young Muslim woman in Kashmir, remembers spending her childhood feeling like an aberration. At 11, when she told her mother she liked women, her mother hit her. R's father, an employee of a textile manufacturing factory, used to frequently thrash his three daughters and wife. "My mother scolded and beat us up before my father came to know of things. Then we'd all get beaten up badly," she said.

Frequent Google searches, her only source of information, assured her there was nothing wrong with how she felt, but she had never met another person like herself.

Until college.

"She was the most beautiful human being I had ever set her eyes upon," R said. "When I finally dared to tell her I was lesbian, she didn't make fun of me."

They dated for two years, till both the families — orthodox Muslims from Kashmir — took offence to the women spending too much time outside their homes. The couple broke up in 2014, a year after the Supreme Court had re-criminalised homosexuality.

"We broke up mostly because we feared for our lives," R said.

Queer women, especially in smaller cities and towns, have similar stories to tell.

When 23-year-old Megha Nandi came out as queer in Lucknow, she realised she knew only 5 women who were "out", compared with dozens of openly homosexual men. She soon found out why.

One night after she kissed her partner in a bar in the city, the bar manager sent her girlfriend a message urging her to "try out men once".

One night after she kissed her partner in a bar in the city, the bar manager sent her girlfriend a message urging her to "try out men once".

"We were both out and our families know about us," Nandi said, "But we felt a tinge of anxiety before figuring out how to deal with this." (They reached to the management, who apologised and said they would fire the employee.)

A woman lawyer said her mother took her to a psychiatrist to "cure" her when she came out. The psychiatrist prescribed medication for depression. Her male friends asked her to send them videos of her making out with women.

"If my father comes to know, who knows what he will do," she said.

Striking down Section 377, these women said, would not immediately wipe away the prejudice ingrained in Indian society, but would give them the courage to stand up and be heard.

"The law cannot solve the question of prejudice in all of these spaces." Bhan, the activist said. "But law can untie your hands to fight for these things with the semblance of an equal fight."