Does Decriminalization of Homosexuality in India make a difference? (a 1L law student perspective)
On September 6th, 2018, people across India and millions across the globe celebrated as the Supreme Court of India overturned S.377 of the Indian Penal Code, which criminalizes sex between adult males. Chief Justice Mishra stated, “Criminalizing carnal intercourse under section 377 Indian penal code is irrational, indefensible and manifestly arbitrary." (India Express) Celebrations erupted in Delhi, and Pride Flags were seen across the streets in Mumbai. While this is a triumph in terms of LGBTQ* rights in India, history tells us that there is still a lot more to be done, and that decriminalizing sexual intercourse is not going to fix the discrimination against the LGBTQ* community, and frankly many other minority groups within India.
While many claim the basis of the discrimination against the LGBTQ* community has religious roots, this is not necessarily true. In ancient India the prescribed punishment for having homosexual intercourse was a bath, eating specified foods and fasting. While it was seen as ritualistically unclean, likely because of the region of penetration between men, it was not punished in the same sense of a wrongdoing.
When the various conquerors arrived whether the Persians, Portuguese or British, they instilled their own values and punishments onto the local population. The Persians punished Muslims for homosexual intercourse by stoning, “Infidel,” by 100 lashes (because it was not necessarily wrong according to “pagan” beliefs,) but the British punishment was more-so the criminal based prohibition. The British Raj criminalized sexuality that was “against the order of nature,” and it was added to the Indian Penal Code, S.377 (SAATHII).
Over hundreds of years, through the various conquerors that imposed their rule on villagers in India, the standards of the local culture including tribal rural areas became very similar. And in our present time, not only is it considered a crime in these rural areas, it is shunned, and it has become the cultural norm to be homophobic.
It is right to assume that though the court struck down the archaic penal law in 2018, we should remain cautiously optimistic. Cautiously, because as recently as 2013 the law was reinstated after prior decriminalization in 2009. To reiterate, this celebration and “triumph,” has occurred once before, but the Supreme Court reinstated the law in 2013 stating, “The High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years, less than 200 persons have been prosecuted for committing [an] offence under Section 377." (Times of India)
Moreover, as much as the judges of the Supreme Court have suggested that their reasoning was on the basis of social progression, it was actually on the basis of a 2017 ruling that guaranteed the “Fundamental right to privacy.” It was then lawyers began to challenge the 2013 legislation, on the grounds that sexual intercourse was private, and the LGBTQ* community, has a right to privacy (Economic and Political Weekly).
Does decriminalization really have an impact on the general culture, and overall levels of discrimination against homosexuals in India? It would be ignorant to suggest that it does absolutely nothing. Setting a legal precedent for any sort of cultural standard, or legal standard for that matter is extremely important. The danger is, as history has shown us, that these laws can be overturned at the whim of a regressive group of judges.
Criminal Law in India is not only guided by the Penal Code of India, but tacitly and implicitly, by community leaders, religious leaders, and the corrupt police. The Supreme Court was right in 2013 by saying that only 200 persons have been prosecuted for this, but that does not include the other thousands that were beaten, killed, shunned, or excommunicated from their communities, and families.
In a country of over a billion people it is difficult to manage a uniform criminal code, and universal prohibitions and punishments. India’s model of federalism is difficult to maintain, and regulate. In this sense, the local communities are the difference makers, alongside law enforcement officials. The intentional ignorance of not stopping the beatings, and murders of LGBTQ individuals is not dealt with by repealing s.377. The cultural norm is not changed by repealing s.377, neither is the general discrimination against the LGBTQ community in India.
While the decriminalization and criminal law as a whole do have an impact on the situation, it sadly will not be the sole difference maker. India claims the Indian Penal Code will soon be amended to punish racial discrimination, but there has been no mention of punishing discrimination against LGBTQ* individuals. This would be a difference maker. This could act as a deterrent to stop rural communities from persecuting the LGBTQ individuals in their respective areas.
Evidently, due to the lackluster performance of law enforcement in India (Forbes), it is likely that it would be a slow process, but it would be another blow to the discriminatory practices against the LGBTQ* community in rural Indian communities. The concept of constructivism tells us change is socially engineered, and while decriminalizing homosexual intercourse between males is a good step, it does not automatically reduce the stigma or discriminatory practices. Prohibiting the practice of discrimination against minorities, such as people within the LGBTQ* community would be a stronger starting point.
Alas, the potential for this is not being discussed in India right now. The rest of the world celebrated this “victory,” in India as a landmark case, though it could be reversed in another few years. Although it appears that political leaders, religious clerics, and the social spheres in India are beginning to warm up to social progressivism, we must remember that decriminalization does not have the same impact on society in India, as it would in the West; real change will not come from altering criminal law alone, but rather within the hearts and minds of the people who believe that the act of homosexuality is a crime.