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Hope in India despite gay sex being made illegal again

A court decision two days ago recriminalized gay sex in India – putting 17% of the world’s homosexuals on the wrong side of the law. But now hope is returning
Udayan Dhar: Says India is still reeling from the court decision banning gay marriage but hope is starting to return.

On a sunny morning in July 2009, a landmark judgment from the Delhi High Court brought a new dawn of freedom to millions of LGBT Indians.

They had spent more than 150 years under the tyranny of a colonial era British law – Section 377 of the Indian Penal Code – that criminalized ‘sexual acts against the order of nature’, which included consensual gay sex.

The High Court fell back on India’s constitutional guarantee of freedom and equality and eloquently said: ‘Indian Constitution does not permit the statutory criminal law to be held captive by popular misconception of who the LGBTs are...

‘It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster dignity of every individual.’

What followed were four years of newfound freedom for India’s hitherto closeted sexual minorities. Thousands threw their masks away at pride marches in Delhi, Mumbai, Bangalore and other Indian cities, queer magazines and books were published in large numbers, gay and lesbian travels and tours began to be organized along with film festivals, art events, etc.

Even corporates came out with supportive human resource policies for LGBT employees and many universities set up gay-straight alliances.

Now, all that progress is at risk of being undone by a single retrograde ruling of the Supreme Court of India. On 11 December, responding to a petition by a motley group of religious fundamentalists and unheard-of NGOs, the Supreme Court reinstated the ban on gay sex.

LGBT Indians are now wondering whether their personal freedom and dignity is up for garbs once again – and at the mercy of corrupt policemen who are known to harass gay men and extort money, or in the hands of homophobic employers and landlords who may not think twice before asking them to move out.

What is causing nightmares to AIDS control authorities is the increased risk of infection among gay and bisexual men who will be pushed further back into the closet and away from preventive and curative health services.

Even a cursory reading of the full text of the Supreme Court ruling is a cause of alarm for right thinking Indians.

One wonders why the court felt it is outside its jurisdiction to interpret a colonial era law in the light of our constitutional values which were set after independence from colonizers.

One wonders why the court observes that Section 377 has been traditionally used in cases of non-consensual sex, yet legitimizes its applicability to consenting same-sex adults. One wonders why attempts to cite the numerous incidents of LGBT harassment were dubbed a ‘miserable failure’.

Indeed what is truly devastating is the court’s observation that LGBTs are merely a ‘minuscule fraction of the country’s population’ and somehow that was reason enough to deny them protection under Article 14 (Right to Equality), Article 15 (Non-Discrimination) and Article 21 (Right to Privacy) of the Indian Constitution.

However, despite this inverted ruling, we – the LGBT people of India – cannot and should not give up faith in our constitutional values and the judiciary’s ability to interpret them in the light of modern socio-cultural norms in an increasingly globalized world.

After all, this is the same Supreme Court that stood up for the right of unmarried live-in couples to lead a free and dignified life and for the right of women to go to the workplace free from the fear of sexual harassment.

Also, the community has been pleasantly surprised by the unequivocal support for LGBT rights from senior political leaders like the Home Minister Palaniappan Chidambaram and leader of the ruling Congress Party Sonia Gandhi who have spoken up and made their stand clear.

Sonia Gandhi has said: ‘I hope that parliament will address the issue and uphold the constitutional guarantee of life and liberty to all citizens of India, including those directly affected by the judgment.’

It is the progressive tradition of our Supreme Court, backed by the elemental values on which our constitution is based and this newfound political support from the top leadership that gives this community hope.

We have been fighting this legal and social battle since 2001. The struggle will go on longer than expected, but LGBT Indians have come way too far to ever go back into the closet again.

Udayan Dhar is editor in chief of Pink Pages – India’s national LGBT magazine.

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