2018 Primetime Emmy
& James Beard Award Winner

India’s Supreme Court decriminalizes homosexuality. What comes next?

India’s Supreme Court just ruled that homosexuality is no longer illegal. This is good news, but the battle isn’t over.

On September 6, 2018, India’s Supreme Court ruled unanimously to overturn a colonial-era law that, for nearly 160 years, had made “carnal intercourse against the order of nature with any man, woman or animal”—i.e., homosexuality—a criminal offense. It was a long, convoluted journey to get here.

When I moved to India in 2012, homosexuality had been legal for three years, since a 2009 ruling by the Delhi High Court had found the law—Section 377 of the Indian Penal Code—to be unconstitutional. Then in December 2013, the Supreme Court of India overturned the 2009 ruling. The Delhi Court, the Supreme Court claimed in an act of extraordinary judicial cowardice, had been outside its jurisdiction to make the ruling in the first place.

Passing laws, the Supreme Court argued, was the purview of the legislature. The right-wing factions of India’s largest religious communities (Hindu, Muslim, Christian) celebrated in tandem, while, in an instant, millions of queer people were suddenly made criminals once again.

Over the next few years, I heard and read stories of queer people entrapped with sex apps such as Grindr and Scruff and Planet Romeo, then blackmailed under threat of the new law. In 2014 alone, the Mumbai police booked 94 people under Section 377 (nationwide the number was closer to 800) compared to 38 in 2012.

And though the law also included space for complaints related to sexual violence against women and abuse of children, the penal code had other, newer laws to cover those crimes. In Mumbai, men were extorted for money on trains and cornered in their own homes after covert rendezvous. In Bangalore, a doctor was booked after his wife, who claimed to have had suspicions about his sexuality from the beginning of their marriage, caught him on tape sleeping with a man.

I’ll admit that the law had little effect on my daily life. I was based in a progressive neighborhood in Mumbai, India’s most progressive city, and in any case, am a masculine-presenting white person, which, unsurprisingly, comes with even more privileges in India than it does in the U.S., if such a thing is possible. Existing outside the traditional family system, my foreignness was also an implicit excuse for all kinds of eccentricities. I felt immune—until I didn’t.

One night in the early fall of 2015, I was at home with my then-boyfriend in my tiny, ground-floor apartment a couple feet away from a window covered by a cane curtain that, particularly at night, was enough to obscure, without entirely hiding, whatever went on inside. We were on the couch, not much clothed, doing what lovers do, when someone outside, invisible in the dark, started knocking aggressively at the window, knuckles like gunshots against the brittle glass. We stopped, moved to the bedroom and waited. A moment later the knock was back, angrier this time, at the front door, which I’d left unlocked as I usually did. I put my clothes back on, moved slowly toward the door, flipped the lock. The knocking went away. I still have no idea who it was.

I had never felt unsafe in my adopted city. That night I did. From then until I left India roughly six months later, I never quite managed to forget how vulnerable I was before the law—and how much more vulnerable were the millions of other queer people who didn’t have my protective carapace of whiteness and affluence. Yesterday’s decision will not eliminate that fear and vulnerability. It does mean that the law, at least, respects your right to exist. That is a monumental change.

The Supreme Court’s decision yesterday has not just made India a safer place for queer people, it has also torn down one more ruin of the Raj, left behind along with a creaking bureaucracy, malarial canals, and the still-weeping sores of Partition. Seeing the law struck down is like watching the last of Britain’s imperial troops finally making their ghostly exit through the Gateway of India, departing glumly for the West.

Over time, though, Section 377 had also transformed into something more than just an injunction against non-reproductive sex. After all, what exactly “carnal intercourse against the order of nature” even means is quite difficult to define.

The taboo the law defined was never just about homosexuality. It was about sexual expression writ large—about a woman’s rights over her own body, about seeking pleasure through sex, about sexual pleasure outside or in defiance of traditional family structures. It was more, even, than sex: it was about deviance, behavioral, social, or political.

Back in 2013, when 377 was first reinstituted, and again in early 2016 when the Supreme Court announced that it would be reviewing the previous decision, I published an essay arguing that, for any citizen of a functioning democracy, sexual expression was just an extension of free speech. In yesterday’s decision, Justice Dipak Misra argued something similar. “Denial of self-expression,” he wrote, “is inviting death.”

Yesterday’s decision was, indeed, fundamental to shaping a better, more just India, but self-expression is still far from safe. Over the decades since India’s independence, political dissidents have been frequently and wantonly subjected to arbitrary arrest and imprisonment, most recently in a crackdown on human rights activists that led to five such arrests just last week. Denial of self-expression is inviting death—this is true for nations as much as it is for people.

After the initial wave of glee subsided, the cynic in me emerged. I wondered if the conservative Modi administration—which announced in July that it would take no formal stance on 377, despite the vocally homophobic positions of many high-level figures in the ruling party—would use this immense step forward to deflect and disguise its otherwise deeply retrogressive attitudes and policies toward religious, ethnic, and political minorities. I also wondered if the people celebrating in the streets—my friends and peers—would take up those other, all-important battles next. They are a force, and there is much still to fight for.

On Thursday, millions were set free. There will still be people knocking on their windows. My hope now is that, seeing injustice and protected by law, they’ll start knocking, too.

If you have any thoughts or comments, write to me at michael@roadsandkingdoms.com.

This post originally appeared on Sept. 7, 2018, in R&K’s weekly newsletter. Read the archives and subscribe to the newsletter.

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