01:46 - Source: CNN
India's top court decriminalizes gay sex

Editor’s Note: Priyanka Borpujari (@Pri_Borpujari) is an independent journalist who has reported from India, El Salvador and Indonesia for Al Jazeera, The Guardian, The Boston Globe, News Deeply, NPR and others. The views expressed here are solely the author’s. View more opinion articles on CNN.

CNN  — 

A dull Thursday night it was not to be. At a suburban pub in one of Mumbai’s recently gentrified locales at 11:30, I found a long queue. One person wore a white wig, with a single horn sticking out, and bangs with rainbow colors. People indoors were laughing, hugging, smoking, drinking. A woman with short hair and a bowtie, collected my entry fee and I was ushered in with the words: “Happy Independence Day. Eat cake.”

Priyanka Borpujari

September 6, 2018 will go down in India’s history as a second Independence Day, granting its 1.3 billion people (according to World Bank) the freedom to love anyone. It upholds the constitutional right to identity, by decriminalizing Section 377 of the Indian Penal Code imposed during British rule, which punishes “unnatural” sex. This Victorian law, introduced by India’s colonizer, continued to oppress thousands of women and men who love differently than some of their heterosexual neighbors. Specifically, the act criminalized anal sex. No matter what may go on behind the closed doors of consenting heterosexual couples, gay men were among those left most vulnerable by Section 377, which carried a maximum sentence of life in prison.

A poem by acclaimed writer Vikram Seth reads, in part:

“To undo justice, and to seek

To quash the rights that guard the weak -

To sneer at love, and wrench apart

The bonds of body, mind and heart

With specious reason and no rhyme:

This is the true unnatural crime.”

At the pub where India’s second Independence Day was being celebrated, the music was blaring, the heat was on, sweating bodies gyrated, people kissed. Until a hit Bollywood song of the 1990s came on:

“Tu premi aaha/ Mein premi aaha/ Tu raazi aaha/ Mein raazi aaha/ Phir kya Daddy kya Amma/ Ek bas tu hi/ Pyaar ke kaabil/ Saara jahaan hai nikamma…”

(In my translation: You are in love/ I am in love/ You are willing/ I am willing/ Then why bother about father or mother/ It is just you/ Who is worth my love/ The rest of the world is useless...)

The crowd followed the song’s chorus. The mood was euphoric, each person unabashedly demonstrative of their identity and sexuality. I wondered about the Indians for whom choosing the person to love is, at best, something that happens only in Bollywood, and at worst, something they could be killed for.

The battle to strike down this law has been a long one, entailing years of petitioning at various courts, momentous wins at the lower courts, and further petitions that revoked such triumphs. Same-sex couples engaging in consensual sex continued to be bullied and harassed. A legal battle that began in 2001 saw several moments of pull and push; the then-ruling Congress Party – which is now hailing the verdict – had stated in 2008 that gay sex is perverted and decriminalizing it would morally degrade society.

Years later, and after tireless efforts by India’s LGBT community, celebrities came out of the closet to step up to make their pleas heard before the country’s Supreme Court.

Interim wins included the Supreme Court’s ruling that privacy was a fundamental right, and that one’s sexual orientation was an essential attribute of privacy. In July this year, a five-judge Constitution bench of the Supreme Court, which decides on cases that pertain to laws about the interpretation of the Constitution, began to hear a batch of pleas. It rejected the demand of one of the lawyers of petitioners favoring Section 377 for a referendum, saying questions of violations of fundamental rights could not be subject to the long-winding decision-making process of a majoritarian government. Finally, on September 6, the bench unanimously decriminalized consensual “unnatural” sex, stating that the law against it violated the right to equality.

When the news broke, social media was abuzz with updates. The judgments by each of the judges are refreshingly unique, especially at a time when India is heaving under the wave of a conservative right-wing government.

Justice DY Chandrachud said: “It is difficult to right the wrongs of history. But we can certainly set the course for the future.” Justice Indu Malhotra summarized the agonies of delay of justice to a large population: “History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.”

As I watched the scene at the pub, I thought of the inter-religious couples who have been harassed and killed; the kangaroo courts called khap panchayats that perform so-called “honor killings” when a youth marries someone from a different caste. I thought of this city Mumbai – perhaps the country’s most cosmopolitan, vibrant, egalitarian and free – where couples cuddle behind sea rocks, at close proximity to other couples, only to be shamed by cops. I thought of the many instances where consensual sex is criminalized, while ministers extol masculinity by offering to kidnap any woman who may turn down a man’s proposal.

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    But then, this day was also not in sight for a long time. Perhaps one day, soon, the freedom to love will no more need arguments in courtrooms, and one’s identity will not need the stamp of approval of the state. What’s unnatural is nonconsensual sex; what’s unnatural is the facade of a democracy when free will to love is hijacked.

    As the party went on, the humid September night was one that celebrated the body and its desires. Seventy-one years after India showed the British empire the door, the LGBT community – and the rest of India – can now finally mind their own business behind their bedroom door.