Gay Sex in India: report on decriminalization

The topic of sex has been forced into the limelight by lawyers and activists from around the country, resulting the Delhi High Court striking down Article 377, the law that criminalizes homosexuality. Writer and activist Indu Vashist gives an account of how they got there, and the appeals they now have to fight.

On the surface, it looks like India is going through a sexual revolution.  In a society that rarely discusses sex or sexuality and where innuendo reigns, gays have arrived in full regalia, limp fist in the air. There have been significant shifts in the past few years, that have made gays visible and a part of public discussion. More Bollywood films than not have gay characters. There have been pride parades in the major metropolises for several years. The historic Delhi High Court decision in 2009 read down Section 377 of the Indian Penal Code, which stated, “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall be liable to a fine.”

The Delhi High Court justices Ajit Prakash Shah and S Muralidhar gave a stellar response to the archaic law, stating, “In our view Indian Constitutional Law does not permit the statutory criminal law to be held captive by the popular misconception of who the LGBTs (lesbian gay bisexual transgender) 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.”

The topic of sex has been forced into the limelight by lawyers and activists from around the country. Activist Ponni Arasu describes the impact of the judgment on the lives of gays in India.

“I think that there has definitely been an increase in the public discourse on LGBT rights and sexuality at large since the judgment in the Delhi High Court. I think that it has also given a lot of confidence to a number of LGBT people in India that it is possible for us to do this. I think that we are far from the actual struggles we have to fight for complete social change and this still remains the beginning.”

Khajuraho temple bas-relief, photo by author

In 1860, the British legal system with all of its European morality was imposed on to India as the Indian Penal Code. This included Section 377 as an offshoot of the 1860 sodomy laws. Obviously, one cannot blame all homophobia in India on colonialism, in recent years the rise of Hindu and other religious fundamentalisms should take the fair share of the blame while the upper echelons of India have assimilated those Victorian ideals; as was evidenced in 1998, when the Hindu right-wing fundamentalists, destroyed cinema halls in Delhi and Bombay upon the screening of Deepa Mehta’s Fire.   In short, the existence of  Section 377 gave legal power to control people’s sexualities. For gay activists in India, it was a strategic choice to tackle this 148 year law as a way to open conversation about sexuality.

The Delhi High Court judgment did not come in a vacuum; activists have been working for years to claim same sex loving history. There have been historians like Ruth Vanita, Saleem Kidwai and folklorists like Devdutt Pattanaik who have worked to reclaim and reinterpret many different ancient stories, and texts from the Kama Sutra to the Khajuraho temples (built circa 950 to 1150AD) with their explicit sexual carvings, to point to the fact that homosexuality has existed and in some cases celebrated within the region for centuries.

But it hasn’t been all spangles and rainbow flags. The reaction to the Delhi High Court decision also shed light on the lives on homosexuals in India – whereas one could slip under the radar before, one is now a potential target. “Due to the increase in visibility, or some signs of a possible backlash, we have seen a large number of cases of lesbian women who have been forced to run away from their natal homes due to violence or forced marriage. And we are all still struggling to match up with to the challenge of dealing with these cases,” describes Ponni Arasu.

A diverse group of religious organisations from Hindu, Christian, and Muslim backgrounds have opposed the Delhi High Court decision. This includes influential yoga guru, Baba Ramdev who claims that homosexuality is a disease that is curable by yoga and herbal medicine. Ramdev, along with a host of other religious bodies have filed petitions in India’s Supreme Court demanding that High Court’s verdict to be struck down. Gautam Bhan, an activist with the coalition Voices against section 377 explains the impact that these religious parties will have on the Supreme Court case.

“The critical part about the Supreme Court intervention is that the government of India has not opposed the judgment and they were the principle petitioners in the case. For us, it is remarkable that all of the appeals against the case are external parties; I don’t think that too many of them have that strong legal cases. They are very much moral, social, and religious responses that in a court of law should not have that much weight. We have also added additional petitions from our side, parents of queer Indians have filed in a separate petition […] I think that we also expect and are hopeful that the Supreme Court will uphold the judgement. It would take a lot, I think, to find legal fault in the reasoning of the High Court judgment.”

A bench of Supreme Court justices G S Singhvi and A K Ganguly will hear the petitions filed by gay rights activists and the political, social and religious organisations who have opposed the Delhi High Court decision that decriminalised homosexual activity. The bench adjourned until after summer court holiday in July because the number of parties and petitions against the Delhi High court decision has increased substantially. The legal fate of one sixth of the world’s same sex loving people hangs in the balance.

Author Indu Vashist at an LGBT demo in India
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