On August 15, 1947, the first day of India’s freedom, a million people watched as India’s first prime minister, Jawaharlal Nehru, hoisted the newly independent nation’s flag in its capital, Delhi. In that moment, Lord Mountbatten notes in his official report to the British government, a rainbow formed in the sky, as if nature herself were joining in the benediction of the birth of the world’s largest democracy.
This week, a different kind of rainbow is lighting up the Indian skies. In a landmark judgment last Thursday that quotes a range of sources from John Stuart Mill to Leonard Cohen, the Supreme Court of India pronounced its decision in response to writ petitions filed by several LGBTQ+ individuals and activist organizations, striking down the criminalization of consensual same-sex relations between adults under section 377 of the Indian Penal Code 1860.
The impact of this judgment will reverberate the world over, and its implications for the global struggle for LGBTQ rights are groundbreaking.
India became independent in 1947, but its people remained shackled by an unjust colonial law. Section 377 was a direct descendant of England’s Buggery Act of 1533, which became the precedent for the introduction of antisodomy laws across the colonies of the British Empire, including India. The conservative morals of Victorian England were imposed on a subcontinent, the rich history of which is rooted in the celebration of the multiplicity of human desires and forms of self-expression.
But times are changing. The Indian Supreme Court’s judgment is remarkable and unprecedented in the breadth of its scope. Rather than stopping at simply decriminalizing same-sex relations, the five-judge bench sets out a visionary conception of the meaning of gender identity and sexual orientation in the context of fundamental human rights.
Stating that “homosexuality is just as much ingrained, inherent and innate as heterosexuality," that “what nature gives is natural,” and that “sexual orientation is immutable, since it is an innate feature of one’s identity, and cannot be changed at will," the justices declared that the criminalization of consensual sexual acts between same-sex adults in private is “irrational, indefensible and manifestly arbitrary." They declared that discrimination against LGBTQ people contravenes four fundamental human rights: the right to equality and freedom from discrimination, the right to freedom of expression, the right to life and liberty, and the right to privacy.
“History owes an apology to the members of this community and their families," Justice Indu Malhotra wrote, “for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries … compelled to live a life full of fear of reprisal and persecution … on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality.”
Acknowledging that sexual and gender minorities the world over have struggled to find acceptance in the heteronormative structure imposed by society, the bench stated unequivocally that to deny the members of the LGBTQ community the full expression of the right to sexual orientation is to deprive them of their entitlement to full citizenship. Members of the LGBTQ community, the court ruled, possess the same human, fundamental, and constitutional rights as any other citizens, since these rights inhere in individuals as natural and human rights. Emphasizing that the role of the courts is to transform society for the better, the justices noted that the law must protect the rights of minorities regardless of what the majority believes in. Social attitudes have to change to accept the identity of individuals and respect them for who they are “rather than compelling them to become who they are not."
In an even bigger milestone, the court considered the sodomy laws not just in the context of same-sex relations between men, but also explicitly ruled to include lesbian, bisexual, and transgender people within the ambit of the protections of its judgment, while also stressing the need to challenge the binary conceptions of gender identity and sexual orientation.
Justice Chandrachud summarized the court’s position by saying that sexual orientation is an intrinsic element of liberty, dignity, privacy, individual autonomy, and equality; and that intimacy between consenting adults of the same sex is beyond the jurisdiction of the state. Not only must the state not discriminate, it must also recognize rights which bring true fulfillment to same-sex relationships. The law must not allow for discrimination, but it must also take positive steps to achieve equal protection.
Never before has a court of law expressed the rights of LGBTQ people so fully and holistically in the context of such a comprehensive spectrum and complement of human rights. The four concurring judgments of the Indian Supreme Court’s constitutional bench together represent the most wholesome and comprehensive articulation of LGBTQ rights ever enshrined in law anywhere in the world.
Section 377 has fallen. However, provisions similar to section 377 have stayed in force across the countries of the Commonwealth, in contrast to the reform and repeal of their ancestor legislation in Britain. The empire crumbled, but it left behind the legacy of injustice and oppression. This unqualified endorsement from the world’s largest, most vibrant, and most diverse democracy, home to a now-legal LGBTQ population that is bigger than most nations, is a clarion call of hope to those who are still subject to such anti-LGBTQ laws. In a world where the politics of populism and nativism and the rhetoric of intolerance are on the ascendant, it falls to the guardians of law and justice to deliver their freedom.
“A moment comes, which comes but rarely in history, when we step out from the old to new, when an age ends, and when the soul of a nation, long suppressed, finds utterance," said Prime Minister Nehru to the Constitutional Assembly of India on that last night of British rule, his voice choked with emotion. “At the stroke of the midnight hour, when the world sleeps, India will awake to life and freedom.”
Some 71 years later, India’s LGBTQ population is beginning to understand the meaning of that freedom. Half a billion LGBTQ people in 70 countries have yet to be accorded that dignity. Their time is now.
KRISHNA OMKAR is an out U.K.-based lawyer and LGBTQ activist who was born and raised in India. He coauthored a brief to counsel that was submitted to the Indian Supreme Court and relied upon in its recent historic judgment.