India “Comes Out,” Scrapping Law Criminalizing Homosexuality

September 26, 2018

By Diya Nag

Early this month, in a landmark decision, the Supreme Court of India overturned a 157-year-old law criminalizing homosexuality. The notorious section 377 of the Indian Penal Code, a relic of British colonial rule that outlawed “carnal intercourse against the order of nature,” was declared unconstitutional by a unanimous five-judge panel.

As the court announced its decision, the media reported the news in real time, tweet upon tweet. And all over India, members and supporters of the lesbian, gay, bisexual, transgender, queer, or intersex community (LGBTQI) rejoiced and breathed a sigh of relief that they were no longer criminals in the eyes of the law. In its decision, the Court cited research indicating that about 8 percent of India’s population of 1.3 billion identify as LGBTQI. In real numbers, that is approximately 104 million people, roughly equivalent to the entire population of the Philippines in 2017. Yes, roughly the population of the Philippines.

LGBT activists hold a long rainbow colored flag demanding equality during Queer Swabhimana Yatra on February 19, 2017 in Hyderabad, India. Photo/reddees / Shutterstock.com

The morning of September 6, it seemed to many that the world’s largest democracy had stepped at last into the 21st century. The court’s four separate but concurring opinions spoke of individuality, minority rights, modernity, discrimination, transgender rights, changing social attitudes, and sexual health. Citing a prior decision on the right to privacy, Chief Justice Dipak Misra argued that punitive laws that erode an individual’s right to choose a partner without fear violate the basic right to companionship, a right that is intrinsic to constitutional protections of life, privacy, and dignity, which together constitute the essence of liberty and freedom. Justice Yeshwant Chandrachud argued that the Constitution protects the fluidities of sexual experience and the right of sexual minorities to navigate public spaces on their own terms. But what caught the attention of many were these words of Justice Indu Malhotra: “History owes an apology to the members of the community… for this ignominy and ostracism that they have suffered through the centuries.”

Seventy-one countries worldwide still criminalize same-sex relations, and the Supreme Court’s decision has the potential to advance other decriminalization efforts in the South Asian neighborhood, where Sri Lanka, Pakistan, Bangladesh, and the Maldives still criminalize same-sex sexual relations. Nepal is the most progressive on this issue, with several laws in place to protect the LGBTQI population and prevent discrimination.

Putting aside the moral and constitutional arguments against section 377, its nullification promises practical benefits. India has more than a million individuals who can now openly coexist with their fellow citizens, and who represent an enormous, untapped population of productive workers and potential consumers. Freed from legal sanctions, India’s LGBTQI community can now make its presence felt in the nation’s economy.

As the euphoria dies down and the ramifications of the court’s judgment become clear, here are a few initial observations:

First, Indian workplaces will need to become more diverse and inclusive. So far, LGBTQI Indians have either been excluded from workplaces or have concealed their sexual identities in professional settings. This may now begin to change, and companies doing business in India will need to revise their policies and practices to support diversity and inclusion. In an early sign of changes to come, less than two weeks after the court’s ruling, a senior employee at a major Indian company was fired for harassment and discrimination against an employee for his sexual orientation. The head of the conglomerate took to Twitter to reaffirm his company’s commitment to diversity.

Second, the “pink economy” is coming, and it’s coming to stay. Within days of the court’s decision, local hotels and travel companies began to direct advertising towards LGBTQI Indians, marking the start of what has been popularly termed the “pink economy.” One of the petitioners in the landmark case, a well-known hotelier, reminded readers in a newspaper article that many members of the LGBTQI community have significant spending power and the potential to bring billions of dollars of business to India in travel, food, entertainment, fashion, beauty, health, and other areas. Development of the pink economy will also mean more employment opportunities for LGBTQI Indians. It will be fascinating to see how Indian and international companies capitalize on the opportunities created by this decision.

Delhi Queer Pride Parade, November 12 2017. Photo/Aamir M Khan / Shutterstock.com

Third, discriminating against LGBTQI Indians represents a massive waste of human capital that is vital to India’s economic future. In a 2014 report, the World Bank explored the economic costs of homophobia and the exclusion of LGBTQI people in India. It concluded that this stigmatization imposes tangible economic costs, including lost output in the workplace due to discrimination, unnecessary health problems, and poor educational outcomes due to harassment and exclusion in schools and universities. The World Bank has consistently pushed for the social and economic inclusion of India’s LGBTQI community. Perhaps this is a good time for development practitioners and institutions to redirect their advocacy from a focus on unjust laws to one that emphasizes social inclusion and economic empowerment.

At midnight on August 15, 1947, Jawaharlal Nehru, India’s first prime minister, delivered the maiden Independence Day address to an India just awakened to freedom from British rule. To many LGBTQI Indians, the morning of September 6, 2018, was a new Independence Day—a personal liberation and a rebirth of their beloved country. One can imagine the parties and celebrations that followed. But now that the pixie dust has settled, India’s social-inclusion policies will need to change and grow to erase the long, colonial legacy of discrimination and exclusion.

Diya Nag is a senior program officer for women’s empowerment and regional trade for The Asia Foundation in India. She can be reached at [email protected]. The views and opinions expressed here are those of the author and not those of The Asia Foundation.

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