I was fortunate enough to have been in India in 2009 when the Delhi High Court repealed Section 377 of the country’s penal code. The ruling, which effectively decriminalised homosexuality, was a landmark ruling and a huge step towards equality in a part of the world that is still decades behind the equal rights debate currently sweeping through the global West. Naturally, there were quite a lot of detractors of the decision. The usual religious justifications against the decision were made, as were unusual claims such as astrologers predicting a sudden surge in “gay sex in the Army”, psychiatrists complaining about losing their livelihood because they could previously “cure homosexuals of their problems”, and the plethora of claims that it went against Indian culture. Never mind the fact that Hindu deities have a history of defying gender norms and Indian epics often describe same-sex unions.
At the time, however, the ruling remained unchanged in the face of such strong and vitriolic opposition. It was an extremely positive decision and, with the UN adopting LGBTQ+ rights as basic human rights two years later in a ground-breaking resolution, it seemed that the world was finally on its way to becoming a more tolerant place. Between the decision in India in 2009 and the 10th of December this year, other countries took huge steps towards greater rights – parts of the US, Europe, South America and Oceania legalised same-sex marriage, Bangladesh officially recognised the transexual hijra community, and even the Catholic Church spoke out against discrimination against the gay community. Not all of these decisions are without flaws, nor do they provide an automatic overnight solution to the greater problem of intolerance. However, the efforts of world governments and judiciaries to at least engage in this debate – something unthinkable even a decade ago – is extraordinary and should have been cause for celebration.
Then the morning of the 11th of December, 2013 came along. I woke up to a message from my brother telling me that Section 377 had been reinstated. A quick look through all the major news outlets proved this to be true. The Indian Supreme Court, in its ever-present wisdom, decided that the 2009 repeal was not constitutional and that Parliament would have to make the change. Legally, they are probably correct; I would not know, being a stranger to constitutional law. Morally, they could not have made a bigger blunder. The 2009 decision allowed the LGBTQ+ community to finally open up. Pride Parades became a regular fixture in some of the larger cities in the country. Thousands of individuals spoke out against discrimination and willingly shared their stories as they could not be criminally prosecuted any more. Now, with a single announcement, four years of progress has just been made redundant.
For the hopeful few who think that the government is likely to render the Supreme Court’s decision meaningless by voting to decriminalise homosexuality using constitutional methods, let me bring you back to reality. The Delhi High Court’s 2009 repeal was revolutionary for the simple reason that it went completely against the inclinations of the overwhelming majority of people in India. Politicians are largely conservative with regards to sexual minority rights as well. For the handful who are not, they would probably be unwilling to risk their political careers over what they perceive to be an insignificant and divisive issue, especially not with elections coming up. A state-by-state ruling, as is happening in the USA, is unlikely as it is not something that has ever been discussed. Personally, I do not think the question of discriminatory practices should be left to the majority. If that did happen, slavery would not have been banned, universal suffrage would have remained a pipe dream, and LGBTQ+ rights would probably still be called abominable and anti-social behaviour.
Furthermore, the ramifications of this decision are not just limited to India, though, of course, that country’s LGBTQ+ community will inevitably face the most backlash. India has long been the forerunner for rights and upturning outdated laws in the region. The hijra community’s recognition in Bangladesh largely came down to the fact that India (and, later, Pakistan) had made similar decisions in the past. Despite the animosity that is sometimes shown towards our more successful neighbour, India is still the benchmark towards which the rest of South Asia strives, at least in terms of socio-economic conditions. If she makes a move towards greater rights, we immediately feel the pressure of living up to that standard; now, we are free to continue discrimination with impunity.
The Indian Supreme Court decision is shameful. With Croatia’s recent referendum indefinitely banning same-sex unions from the constitution, it would appear that bigotry is still very much alive around the world. Unfortunately, it seems to be winning a few of the battles. Let us hope it cannot win the war.
Update: Australia’s High Court has reversed legislation allowing same-sex marriages in the Australian Capital Territory (ACT). This effectively invalidates 27 unions that took place after the legislation passed. The decision has been handed over to Parliament, which voted down a similar nation-wide legislation in September of last year. It is important to note that the court’s decision was prompted by a complaint from the national government. Unfortunately, that gives us a good idea of where the issue is likely going.