Seminar: The decriminalization of homosexuality in India – Litigating on love.

On 22nd October, the Lawtransform unit for Gender, Sexuality and the Law hosted a breakfast seminar on the decriminalization of homosexuality in India. Vikram Kolmannskog (researcher on the LawTransform project Sexual and Reproductive Rights Lawfare: Global Battles) and Jayna Kothari (constitutional lawyer and co-founder of Centre for Law and Policy Research, Bangalore) discussed the Indian Supreme Court judgement that decriminalized homosexuality. The participants’ presentations and subsequent discussion, focused on the constitutional developments arising from the judgement, advocacy strategies, what impact the judgment will have for the LGBTQI community in India, and the lessons that other countries could learn from the struggle for decriminalization. The presentations were inspiring and motivational. As Kolmannskog said, the decriminalization of homosexuality amongst the regular cycle of concerning news is just what the world needs.

This short article will summarize Kolmannskog’s presentation, based on an article he wrote in connection to the seminar.

In the judgement for decriminalization, the “Navtej Singh Johar”-verdict, section 377 of the Indian Penal Code was read down and declared unconstitutional. This section criminalized “carnal intercourse against the order of nature”. Although the wording of this is vague, and has been understood to target all non-procreative sex, in practice, the law was seen as a criminalization of homosexuality. Section 377 was not usually enforced by the courts in post-independence India, but it has still had strong negative effects for the LGBTQI community, impeding the freedom and growth of LGBTQI individuals in every sphere of their lives.

Since 2001 there has been a broad mobilization against section 377, both on an activist and a legal level. Interestingly, Kothari argues that this mobilization has mainly been led by upper-class, upper-caste homosexual men, which suggests a class/caste/gender-dimension of the criminalization. According to Kolmannskog, the LGBT-community allied themselves with the women’s movement, emphasizing intersectionality and the connections between various struggles. This class/caste/gender-dimension was also reflected in the verdict itself, with Justice Chandrachud stating that “Section 377 criminalizes behavior that does not conform to the heterosexual expectations of society. In doing so it perpetuates a symbiotic relationship between anti-homosexual legislation and traditional gender roles”. The LGBT-struggle was thus seen as part of the feminist struggle to disrupt traditional gender roles and hierarchies.

In his paper and presentation, Kolmannskog highlighted the judgement’s exceptionally poetic and compassionate character. The verdict begins with Chief Justice Misra quoting Goethe: “I am what I am, so take me as I am”, and has several other references to poetry throughout, alongside references to fact-finding reports, narratives of persecution, academic writing, and more. The judgement is written with compassion, with Justice Malhotra even going as far as stating “History owes an apology to the members of this community and their families”. This style of writing shows inclusiveness in both form and content, reflecting the LGBT community’s fight for inclusion.

Kolmannskog sees the judgement for decriminalization, the “Navtej Singh Johar”-verdict as “one of the most progressive and comprehensive verdicts that the world has seen in this field of law till date”. In a time where many countries are seeing an increase in discrimination and hate, the verdict stands as beacon of hope.

Following the success of the breakfast seminar, the Unit for Gender, Sexuality and the Law will screen the Indian documentary ‘Breaking free’ on 29th of October. The documentary demonstrates the impact of section 377 before the decriminalization of homosexuality.