On February 2nd the Supreme Court in New Delhi agreed to set up a five-judge Constitution bench to reconsider its 2013 ruling that only Parliament can change the 1861 law banning gay sex. Tuesday’s decision is the latest chapter in a long-running legal battle between India’s social and religious conservatives and the gay community over the law passed by British colonial rulers in the 1860s. – Editor
At the Jaipur Literature Festival last month, Stephen Fry spoke about Oscar Wilde. He did not mince words when he spoke of his own, and Mr. Wilde’s, sexuality; about growing up ‘different’ and about dealing with ridicule and harassment. Mr. Fry received a standing ovation, a reaction that sits somewhat oddly with the deep prejudices we as a people often display, but one that also indicates the kind of acceptance we are capable of.
Stephen Fry is an English writer and Oscar Wilde was an Irish playwright. Their countries decriminalised private same-sex intimacy in 1967 and 1993, respectively. In 2015, Ireland also became the first country to legalise same-sex marriage by a nation-wide referendum. But India, a country with an ancient and healthy history of celebrating alternative sexualities, ironically continues to criminalise what it calls “unnatural sex against the order of nature”. And it does so because the Indian Penal Code was drawn up in 1860 as a faithful mirror of colonial [Christian] beliefs, thus trapping India in a prudery that is far removed from its real and rich history of sexual liberty that regarded very little as “unnatural”. Even more important, Indian philosophy, unlike the Western construct of a rigid male-female binary, has always recognised that gender is socially grafted on to what is essentially a sexually dimorphic body. Without even delving too deep, just a cursory understanding of the ardhanareeswara concept amply demonstrates this.
In its inspired 2009 judgment, the Delhi High Court seemed to finally acknowledge this history when it read down Section 377, thus allowing consensual sex between same-sex individuals. It was received with jubilation by not just the LGBT community but by every Indian who believes that in a progressive, liberal democracy, the government cannot be allowed into your bedroom. Unfortunately, the ruling was overturned by the Supreme Court in 2013. On [February 2nd], a [three]-judge bench of the apex court heard a curative petition to decide once again on the constitutionality of Section 377.
It [was] a day fraught with tension. A day on which hinges the small, private happiness of countless ordinary people. Just how anxiously they [waited for] the verdict you can see from posts on social media that talk of being “full of hope and prayers”, of “keeping fingers crossed”, of being “filled with unease”. There [was] anxiety but there [was] hope too. As lawyer and activist Vivek Divan [said], the community finds it hard to believe that the country or its courts can brand them as ‘criminal’ any longer. “As a lawyer, as a law-abiding citizen, I find it hard to be told that I am less than equal,” he says.
It is hard to believe that in 2016 we are still debating the legality of an individual’s sexuality, when in 2014 the Supreme Court’s historic NALSA judgment affirmed the fundamental rights and freedoms of the third gender. This surely is an unequivocal assertion of the right to equality of all persons. This right then logically extends first, to every individual whether heterosexual, homosexual or transsexual, and second, to every sphere of their lives, including how they choose to be intimate in the privacy of their homes. As writer Lesley Esteves says, “You cannot recognise their right to life and liberty and simultaneously criminalise their sexual life.”
The 2013 judgment sought to defend Section 377 by claiming that it does not criminalise a community or a sexual orientation but merely identifies certain acts as offences. But how does one separate the act from the person? And there lies its biggest catch. In its implementation, Section 377 does not usually enter the heteronormative bedroom. Instead, it is regularly used to harass sexual minorities. As Esteves points out, hijras, trans men, and gay men constantly face physical violence, sexual abuse, and financial extortion by the police. Last year, the gay student in Bengaluru’s Indian Institute of Science could be openly blackmailed by his classmate because of the threat of prosecution under Section 377.
The second aspect of the 2013 judgment was that the Supreme Court left it to the legislature to amend the law if it is indeed discriminatory. This is unusual reticence from a judiciary that has been both hailed and reproached for its extraordinarily activist stance in most other issues. If the personal liberties of heteronormative Indians are threatened, would the courts see it as a constitutional infringement or ask for Parliament to amend the Constitution?
And finally, when the court dismissed the LGBT community as “a minuscule fraction of the country’s population”, it failed to recognise that a democracy has to protect the liberties even of somebody who is in the minority of one.
In the years between 2009 and 2013, when the LGBT community had the sword of illegality removed from over its head, there is anecdotal evidence, says Mr. Divan, which shows a flowering of liberty in families, schools and workplaces. More gay and lesbian people came out without fear of persecution. It is always easier to fight social prejudice when the law is firmly on your side. This has often motivated the judiciary’s proactive approach to recognise and grant legal rights to, say, women from social custom or to protect the environment from corporate aggression.
On [February 2nd], when the Bench heard the curative petition, there [was] compelling reason to anticipate that the court will not allow even a fraction of Indians to live under a forced veil of secrecy or under the constant threat of violence anymore. – The Hindu, 1 February 2016
Filed under: delhi high court, homosexuality, india, india supreme court, section 377, sexual identity Tagged: | aravani, gay, hijra, homosexual, homosexuality in india, indian supreme court, prejudice, section 377, transsexual