It was a proud moment for India to join the list of 17 commonwealth countries to get rid of a 179-year-old British colonial law that punishes homosexuality with up to life imprisonment. A historic judgment was delivered by the Indian supreme court last week decriminalizing homosexuality.
The five-judge bench will gain an important position in the History of the LGBT community in South Asia to be the first to have reversed the colonial-era law in the area.
“The LGBTQ community has the same fundamental rights as citizens. The identity of a person is very important and we have to vanquish prejudice, embrace inclusion and ensure equal rights,” said Dipak Misra, this Chief Justice of India, while delivering the court’s decision.
Justice Indu Malhotra, another judge on the bench, said, “History owes an apology to members of the community for the delay in ensuring their rights.”
Yet the colonial era homophobic law remains a criminal offense in 36 former British colonies. Seventeen have decriminalized such laws from their constitution yet decriminalization is yet to come for other Asian nations like Bangladesh, Sri Lanka, Singapore and Pakistan which fell prey to the 19th-century British morality.
Although pre-colonial India celebrated and recognized homosexuality in many of their religious texts and scriptures, it is still considered a social taboo and people continue facing endemic discriminations based on their gender and sexuality. The court judgment has surely set a foundation to remove this taboo from Indian culture and make it more comfortable for people to come out of the closet and express their desires freely.
Despite being rarely used to persecute people, Section 377 of the Indian constitution was used to harass and exploit people of the LGBT community. Giving them the same rights as citizens will certainly give them more strength to report more and more discriminations faced by the Indian LGBT community and report other sexual abuses that used to be unnoticed.
It was a long struggle until here for the LGBTQ community to get to this point. The first challenge to the law was taken up by Naz Foundation, a Non-Governmental Organization that works to create awareness of HIV/AIDS and other such sexual health issues. Naz Foundation filed a petition challenging Section 377 in the Delhi High Court.
Societal discriminations paired up with discrimination based on law made people reluctant to take HIV/AIDS confirmation tests. But this historic judgment will make people more comfortable seeking the medical care they seek to find.
But this is just the beginning for the newly rainbow wed nation to achieve equal rights for its LGBT citizens. The High Court did deliver justice in 2009, making Section 377 invalid only to be overturned by the Supreme court of India in 2012 after petitions filed by the religious organizations across India. But the 2018 Judgement to Amend Section 377 will surely be the basis for the future improvements to be made in the constitution to recognize marriage equality and property rights.
It is a long battle, but the LGBTQ activists in India are ready to take up the challenge to keep fighting. The biggest challenge will be to craft reforms unique to a country with a diverse and complex social construct, where courts recognized Transgender individuals as equal citizens earlier than it recognized gay citizens.
