Re-Imagining Queer Rights in Post-377 India

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On September 6, 2018, the Indian Supreme Court ruled that Section 377 of the penal code was unconstitutional. Section 377 is concerned with “unnatural offences” and criminalizes both heterosexual and homosexual acts that involve “carnal intercourse against the order of nature.” The law has been particularly used to harass, blackmail, arrest, police, and ostracize LGBTQ+ individuals in India, often preventing their access to necessary social and healthcare services and creating a climate of everyday fear and exclusion. Calling the section “arbitrary,” “irrational,” and “unconstitutional,” the five judges unanimously agreed to decriminalize homosexuality. Judge Indu Malhotra said, “History owes an apology to the members of this community and their families […] for the ignominy and ostracism that they have suffered through the centuries.” Her words are crucial as Section 377 is a colonial-era law that was mainly drafted by Thomas Macaulay in the late 1830s, and brought into effect in India in 1861. Framed around themes of “revulsion,” “disgust,” and “immorality,” the law was introduced by the colonial powers to govern and tame racialized unruly bodies and sexualities in accordance with the norms and regimes of British morality. Like the Criminal Tribes Act of 1871, which aimed to control ethnic, caste, social, and religious groups that were seen as ungovernable and unmanageable, Section 377 was a colonial tool to “control” deviancy and civilize the colonized. While India became an independent state in 1947, however, the law persisted for over seventy years.

After decades of hard work, struggle, grassroots and legal activism by queer communities (and their allies), the arrival of the judgement brought jubilation across the country. Videos, photographs, and stories surfaced for days, capturing the joy and relief of queer Indians and their supporters. As news of the ruling spread, some commentators in Western countries congratulated India for “finally” achieving this “progressive” milestone, praising the country for arriving at “modernity” and embracing “Westernized” ideals of equality and LGBTQ+ rights. Rightfully so, a backlash emerged on social media, pointing to the colonial histories of Section 377 and to the gendered and sexualized dimensions of colonial control and violence. Commentators claimed that India was not “westernising” but “decolonizing.” The Supreme Court ruling is, indeed, a crucial milestone in India’s shedding of its colonial past as well as in the struggle for equality and justice for India’s LGBTQ+ community. However, this binary of “Westernization” and “decolonization” that emerged in the aftermath of the ruling is not only partial and problematic, but it also obfuscates the systemic violence of the Indian state, thus pinkwashing its widespread violence.