Homosexuality decriminalised in India

Hester Brown, our Chair, is currently in India and happened to be there recently when a wonderful development for human rights made the news. She sent us this report…

Homosexuality decriminalised in India

By chance I have been in India to witness a national turning point: the Supreme Court declared on 6September that homosexuality is no longer a crime, and that history owes the LGBTQ community an apology for subjecting it to “brutal” suppression.

The individual statements of the five judges on the Constitutional Bench are so clear and eloquent in upholding human rights as to move one to tears.

The head of the Bench, Chief Justice of India Dipak Misra, said that the LGBYQ community had been denied the fundamental rights of “individual autonomy and liberty, equality for all sans discrimination of any kind, recognition of identity with dignity, and privacy of human beings which constitute the cardinal four corners of our monumental Constitution.”

The decision overturns part of Section 377 of the penal code, a British legacy, which lumped homosexuality with bestiality and paedophilia as “unnatural”.

As recently as 2013, a two-member Supreme Court Bench found that “there is nothing wrong in the law treating people having sex against the order of nature differently from those who abide by nature” and said it was up to Parliament to change the law.

Justice D.Y. Chandrachud gave this short shrift yesterday. He said that homosexuality is documented in 1,500 species and exists in all species except those that “never have sex at all, such as sea urchins and aphis”.

All five judges saw the struggle of the LGBTQ community as part of a bigger pattern of oppression of all those who challenge social norms, religious orthodoxies or power relations within the status quo. Justice Rohinton Nariman said the idea that homosexuality or anal sex was a sign of mental illness had been “thrown to the wind”.

He said: “Mental illness shall not be determined on the basis of non-conformity with moral, social, cultural, work or political values or religious beliefs prevailing in a person’s community.”

Talking specifically about the transgender community, Chief Justice Misra said Section 377 had stigmatised an already oppressed and discriminated class of people: “Bigoted and homophobic attitudes dehumanise transgenders by denying them their dignity, personhood and above all, their basic human rights.

“To change the societal bias and root out the weed, it is the foremost duty of each one of us to stand up and speak up against the slightest form of discrimination against transgenders that we come across. Let us move from darkness to light, from bigotry to tolerance and from the winter of mere survival to the spring of life – as the herald of a new India – to a more inclusive society.”

He wrote movingly of transgender people needing now to “progress from their narrow claustrophobic spaces of mere survival, hiding in there with their isolation and fears, to enjoying the richness of living.”

Justice Chandrachud criticised the BJP-led government for “washing its hands” on the matter of the legality of Section 377, and leaving it to the “wisdom of the court”, when Section 377 was so clearly anti-constitutional.