In the Eyes of the West: Is the End of India's Ban on Gay Sex an Example of Genuine Decolonization?

On September 6, 2018, the Supreme Court of India declared Section 377 of the Indian Penal Code unconstitutional as well as “irrational, indefensible, and manifestly arbitrary.” This announcement occurred after six LGBTQIA+ Indians ― a journalist, dancer, chef, business person, and two hoteliers―filed a writ petition to the Supreme Court challenging the constitutionality of the section, which criminalized “carnal intercourse against the order of nature.”

Section 377 was an anti-sodomy provision of the Indian Penal Code that considered “unnatural offences,” including but not limited to private homosexual sex, punishable by law. The provision was formed by British colonizers during their invasion of South Asia, and lasted in the Indian Penal Code for an entire one hundred fifty-four years. The provision read:

377. Unnatural offences.—Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

This provision targeted those inhabiting the bounds of India at the time, imposing prescriptive rules through authoritarian legislation. Racism, trans erasure, and queer-antagonism, as implied in the above provision, were inherent to such colonial rule. The wording of Section 377, however, remains vague. It was re-interpreted by the courts and the public in the many years after it was established as law. Eventually, the popular provision in India was known to have “criminalized gay sex.”

Its constitutionality was first contested in court in 1991 by AIDS Bhedbhav Virodhi Andolan, an NGO mobilizing activism around the fight against HIV and AIDS. The court ignored this petition for years until it eventually expired in 2001 and was thereby dismissed. That year, The Naz Foundation (India) Trust, an organization which also specializes in the fight against HIV and AIDS, filed a public interest litigation (PIL) in the Delhi High Court. The Naz Foundation advocated for the unconstitutionality of the initial provision “insofar it criminalises consensual sexual acts of adults in private.”

The Delhi High Court dismissed the petition, after which The Naz Foundation appealed the dismissal to Supreme Court in 2006. The Supreme Court instructed the Delhi High Court to reconsider. In 2009, the Delhi High Court struck down Section 377. In 2012, the Supreme Court overturned the High Court order declaring it “legally unsustainable.”

 In 2016, several “high-profile Indians” filed a writ petition once more, challenging the constitutionality of Section 377. Two years later, the Supreme Court finally decided to scrap the provision.

Amidst this lengthy process and numerous re-interpretations of Section 377, public opinion appeared to evolve: large-scale protests erupted and pride parades took place. Yet, brutal attacks toward hijras and kothis were at their worst. Re-interpretations of Section 377 aiming explicitly to protect consensual acts of adults in private designated the state-protection of homosexual cisgender men and cisgender women yet did not explicitly protect other groups under these same terms. Being that trans erasure, caste-based discrimination, and racism were not addressed in the context of these court proceedings, the declaration of Section 377 as unconstitutional is not a direct indicator of India’s accelerated decolonization.

I place India in context in order to deepen this inquiry. Thus, I ask: in the midst of India’s present struggle for legitimacy on the international stage, how can we distinguish signs of accelerated decolonization from indicators of the elite’s yearning toward the appearance of so-called “modernity”?

Queerness in Pre-Colonial South Asia

Numerous records show that queer life is indigenous to South Asia. Under Mughal rule during the 16th century, it is said that hijras and eunuchs—those whose gender system was determined illegible and impermissible by British colonists—were accorded high degrees of respect in royal courts as political advisors, administrators, and generals.

Ruth Vanita recognizes “male-male attraction” as a theme in pre-colonial Urdu poetry in her Indian Islamic literature analysis, “Gender, Sex, and the City: Urdu Rekhti Poetry in India 1780-1870.” In addition, Bankim Chandra’s 1893 Bengali novel entitled Indira contains reference to “two women” who “playact the roles of husband and wife, culminating in a passionate kiss.”

Following the arrival of colonial forces to India, however, queer and trans existence was subjected to punishment by way of Victorian/Judeo-Christian morality. This moral code dictated that intimacy not intended for having and raising children was prohibited. In addition, it declared hijras, kothis, eunuchs, and other gender-variant people to be criminal.

British forces duplicated and enforced Section 377 across its colonies, subjecting indigenous people of color to a social code that punished “unnatural sex,” criminalized gender-variance, and etched ideals of acceptability into the legal framework during processes of colonization.

British colonizers imposed queer and trans-antagonism onto South Asian society whereas, prior, these were accepted ways of life as demonstrated by literature and social history. So, then, the undoing of colonial-era legislation may be considered a decolonial event.

Diasporic Social Media Discourse

Many South Asian young people processing India’s Supreme Court decision from inside and outside of the region seem to comprehend the importation of this colonial logic. The understanding among this population is particularly due to the existence of a written record that criminalizes queer existence and the knowledge that it was formulated by British invaders.

However, the Internet is a site where uninformed ideas on significant topics often come to be critiqued with lightning speed, as was the case following this legislative decision. One Twitter post, from a user named Shahmir Sanni, received unique attention after claiming, “Today is a historic day for the LGBTQ community...From gay Sufi lovers to Hindu transgender women. India’s sexual fluidity was always a dirty, barbaric concept to its western invaders and it is crucial for the LGBTQ community here in the west to understand this. This isn’t India becoming ‘westernised’. It’s India decolonising.”

I can appreciate the acknowledgement of British colonialism’s generational impact on India’s gender code addressed in this post as a trans Indian-American. However, for myself and many who replied to this tweet, Sanni’s words raise a globally important question: does this Supreme Court decision really signal the acceleration of India’s decolonial process?

The Matter of India Decolonizing

Whether the decision regarding Section 377 was a first step in India’s process of decolonization is an inquiry that requires more critical consideration of this legislative event.

The LGBTQIA+ professionals who presented themselves to the court did so bearing a particular elite status in the greater context of LGBQTIA+ India, which is composed of many people for whom a Supreme Court victory would make no significant difference to everyday health, safety, and survival. The combined weight of structural poverty, caste, and gender marginalization leave many external to the possibility (and benefit) of protection by the state, especially given the manner in which this decision was made by the court. The Supreme Court decision was made in “deference to the Indian constitution on the grounds that criminalizing acts between consenting adults violates the rights of individual citizens.” Yet, as critiqued by Tara Alturi, its wording made no mention of queer people, same sex desire, sex, or gender identity, thereby not specifying the tangible protections that the state would provide nor the populations for whom they would apply.

This decision in the Supreme Court occurred as “India [was] being touted within the mainstream western press as a ‘global super power’” while its substantial wealth gap remains. Following the court’s announcement, national and global narratives regarded the motion as a victory for the “rights” of LGBTQIA+ Indians, but particularly for the rights of LGBTQIA+ Indians to be gay in private. Therefore, those with access to privacy, cis-heteronormative assimilation, and state protection receive the greatest benefits from this court decision.

The inexplicit nature of this legislative announcement produced an unspoken marginalization to “those who remain queer to the nation.” At the same time, though, celebratory sentiments spread through the global media. As a result, media consumers were, in Alturi’s fitting words, “invited to forget the violence of the state and fetishize judicial power through a discourse of ‘human rights.’”

The global media response to the 2018 Supreme Court decision created the impression in a number of digital spaces that this event implies a decolonizing Indian nation. The obstacle to this reality is that there remain those who are little-impacted by legislative victories like these, such as religious minorities as well as the poor, lower caste, and gender-variant.

Persisting inequalities reveal that this year’s ruling can’t justifiably be considered a progression toward India’s quickening decolonization. Rather, the rights-discourse embedded in the court’s announcement as well as in global media responses signal positive global impressions toward the rising, “modernizing” super power.

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