Recently, the Supreme Court in India struck down Section 377 of the Indian Constitution, a holdover from the history of colonialism which criminalized “carnal intercourse against the order of nature.” The offenses listed by Section 377 categorized consensual homosexual behaviors with bestiality, paedophilia, and rape.
Fortunately, the law has been nested within an extremely diverse culture of Hinduism. Hindu belief holds that the individual occupies a single moment in a continuous process of reincarnation that ultimately releases the true self from physical limitations—and sexuality. The Hindu Vedas, dated at 6,000 BCE and regarded as the oldest scriptures in the world, prescribe rather than mandate sexual behaviors. They even describe appropriate behaviors for members of different castes or social and religious class systems.
The Vedic culture in India developed between 1500 BCE and 500 BCE. Hinduism, considered to be the successor of the Vedic religion, has profoundly impacted the formation of the country’s history, culture and philosophies. Historically, many sects of the Hindu culture embraced a philosophy of openness to LGBTQ individuals. Historians acknowledge that pre-colonial Indian society did not criminalize or stigmatize same-sex relationships. Rather, there are historic records of transgender individuals serving in the Mughal court.
Modern societal homophobia was introduced to India by European colonizers. Section 377 of the Indian Penal Code was enacted by the British, and stood from 1861 till Thursday 6th September, 2018. The history of colonialism in India led to the development of a stigma of shame. From this point in history on, individuals who were known to be LGBTQ were considered to be an embarrassment against their family name. Colonialism introduced a deep tension for the LGBTQ-affirming sects of the Hindu majority in India.
As of 2011, almost 80% of the country’s 1.2 billion people followed the Hindu tradition. This helps the outsider to understand why although Section 377 was legislated, its enforcement was considerably weak. The attitudes of the legal code and the Vedic texts—not necessarily at direct odds—do create a moral aggravation for people who wish to honor both. The Code, and eventually the culture of shame attached to homosexuality in India, led to LGBTQ people choosing to remain in the closet.
From the time of the introduction of the Code till recent times, public reception of homosexual behavior has dramatically changed. In sharp contrast to the historical acceptance of homosexuality, LGBTQ individuals have become vulnerable to honor killings, attacks, torture and beatings. These violent reactions to homosexuality are particularly prevalent in rural areas. Gay people in such areas are occasionally forced to marry into opposite-sex relationships.
Section 377 of the Indian Penal Code was problematic for several reasons. The law codified an outdated colonial system of morality. It criminalized a wide range of consensual behaviors. While it did not manifest into a scenario of the mass incarceration of LGBTQ individuals, it did leave India’s LGBTQ community vulnerable to discriminatory treatment, extortion, harassment and abuse.
In recognition of these challenges, there have been several attempts to repeal the law. The Naz Foundation petitioned the courts in 2001 to revise the Penal Code. They encouraged the courts to exclude consensual behaviour from Section 377. The Delhi high court agreed, noting that the criminalization of gay sex was a violation of rights to equality, privacy and liberty as upheld by the constitution of India. In 2013, the Supreme Court overruled this decision, judging that only the parliament could amend the law. This drawn-out saga finally came to a head last Thursday. A newly constituted bench of the Supreme Court revised the decision and decriminalized gay sex.
Although the recent decision removes any legal justification of such treatment of gay people in India, it does not necessarily renovate the culture of abuse of gay citizens. Still, the court’s jurisprudence expansively listed constitutional values of inclusion and democracy. Their judgments have been lauded as going further than comparable jurisprudence in the US and the UK. The courts expect that the ruling will clear the path for future courts to recognize LGBTQ rights in areas like employment and education and that sexual minorities could eventually divorce themselves from shame and fear when expressing their intimacies publicly.