Section 377: India's battle with colonial-era law for same-sex love

A colonial-era law that criminalizes homosexual sex is viewed by many as a blot on the idea of India as a liberal democracy

Five judges on India’s Supreme Court are hearing a challenge to a law that criminalizes homosexual sex — Section 377 of the Indian Penal Code, introduced by British colonial authorities in 1861 and kept on the books in independent India. 
 

The Indian government told the court, which began hearings last Tuesday, that it would leave it to the wisdom of the judges to decide whether Section 377 violates fundamental rights to life, liberty and personal security as long as it does not get into broader issues like marriage, inheritance and adoption. But these are inevitable. Menaka Guruswamy, a lawyer for the plaintiffs against Section 377, argued that it was love that needed to be “constitutionally recognized” and not just sex.

Social media and newspapers are filled with conversations and reports about Section 377, but L.G.B.T. life in India has long bypassed the law. Last week I got a message about “Pink Coffee,” a gay get-together at a cafe in Kolkata. A few weeks earlier, Varta, a local nonprofit, introduced an online database of L.G.B.T.-friendly therapists, doctors and legal aid providers in India. Days later I went to the regular gay dance party at a luxury hotel in the city.

This is a very different India from the one I came out in. The first gay Indian I ever met was Siddhartha, a lanky young man with charmingly crooked teeth. He had been my senior at a missionary-run school in Kolkata and had recently returned from university abroad.

We met on our old school grounds one evening, talking, smelling the bruised grass of the fields where we played as boys. He told me about escapades in New York and parties in his rooftop apartment in New Delhi where drag queens danced on a moonlit terrace. I listened, wide-eyed at his cosmopolitanism and nervous about his daring. On the way out we ran into our old teacher, a priest in a cassock. I flinched, as if we had been outed.

When I went to study computer science in Southern Illinois in the 1990s, like thousands of other Indian students I was pursuing the American dream. My family did not know that embedded in that dream was also the secret promise of a different kind of freedom in the anonymity of a country where no one knew my name.

It is no accident that Trikone, the first South Asian L.G.B.T. group, was founded in 1986 in Silicon Valley by an Indian engineering student, much like myself, finally savoring the freedom to be both Indian and gay.

My small Midwestern university town had a gay bar. In my naïveté I assumed that was a prerequisite for all American towns. The first time I saw one of the university professors calmly drinking beer there I was shocked. I remember an L.G.B.T. students’ meeting at the university Student Center. I stood outside the door nervously, wishing it did not have that paper with “L.G.B.T. Support Group 6-8 pm” written so nakedly on it.

My diffidence feels out of place in the far more assertive India I returned to in 2011. There are boisterous Pride marches and L.G.B.T. film festivals. The second runner-up to Mr. Gay World is an Indian man who grew up in a village and now researches brain cancer in India.  

There are six petitions arguing against Section 377 before the court. They are from activists, students and alumni of elite engineering institutes, and a celebrity chef, a dancer and hoteliers. India has come a long way from 2001 when the petition against the law had to be filed by an AIDS advocacy organization because no queer person was willing to stand up in court and say, “I am gay and this law affects me.”

India’s Supreme Court is playing catch-up in a society that seems to have largely moved on. Though most politicians do not want to touch Section 377, it is viewed by many across the ideological spectrum as a blot on India’s idea of itself as a liberal democracy. I haven’t read a single newspaper editorial supporting the archaic law. If once activists looked at Lawrence v. Texas in the United States Supreme Court for hope, now they feel the world is looking at India, hoping that the court will do the right thing. If Section 377 falls, there will be celebrations not just in India but also in San Francisco, Toronto and London.

But even if the court repeals the law, Indian society still has to contend with the deep and insidious stigma of being queer. Arif Jafar, an activist, wrote about being hauled to a police station, beaten up and thrown into a cell, where he lost most of his teeth. His request for bail was turned down because the police saw him as a “curse to society.”

In June, two women, both married to men, flung themselves off a bridge in the western state of Gujarat. They left behind a note that read, “We are leaving the world which will never allow us to be one.” These women did not come to L.G.B.T. parties in luxury hotels. They found no support groups through smartphone apps. Repealing the law criminalizing homosexual sex will not save young men and women like them overnight. But it is a first and necessary step.

Gay life is stubborn. No matter how much a law or a society tries to stamp it out or pave over it, it keeps growing stubbornly like weeds in the cracks. My friend Siddhartha was always arguing against all odds that change was possible. In the first citizens’ report on homosexuality in 1991, which he co-wrote, he demanded the right to same-sex marriage, which seemed then like asking for the moon.  

But if Section 377 falls, even that horizon feels within reach. Siddhartha will not be there to see it. He died much too young, felled by Hodgkin’s disease. I can still see him sitting there near the playing fields of our youth, his shirt sleeves rolled up, his glasses glinting in the moonlight, telling me: “Stay in America for your education and your career if you need to. You don’t have to stay away because you are gay. Things will change here. Believe me.”

I didn’t quite believe him then. I certainly did not dare to think that one day the Supreme Court of India might be poised to deliver that reassurance not just for gay millionaires who can party in Delhi and marry in Paris but also for young men and women in small-town India.

Sandip Roy is a novelist based in Kolkata