India Legal team
When Satish (name changed) was accosted by a policeman as he and his boyfriend were walking along the beach, he knew what was coming next. They would be threatened with Section 377 of the Indian Penal Code (IPC) and made to look like common criminals. “So I did the next best thing to buy peace. I paid him `100,” says Satish. “But the unfairness of it consumes me time and again. We gays aren’t allowed a life of our own in India and are constantly harassed. Surely, one has the right to love whom one wants. While other countries have moved far ahead, India still lags behind in this aspect. Some things are best left private,” he stressed.
And that is the reason why this 25-year-old is banking on a Supreme Court (SC) judgment, likely to be delivered soon, to decriminalize homosexuality. Though the SC in December 2013 had said that amending or repealing Section 377 was the responsibility of parliament and not the judiciary, many are hoping for the best.
A curative petition is now pending in the SC, after it dismissed a review petition filed by Naz Foundation and several others.
The chances of judgment being reversed in a curative petition are slim, as the same bench, which had passed the judgment, and dismissed the review petition, would be hearing it. The only difference is that the curative petition would be heard in an open court, with lawyers from both the sides getting the chance to present their case.
If this is also dismissed in the Supreme Court, the only ray of hope left will be that the political class steps in and passes a progressive law in parliament, legitimizing gay sex. That, again may be a bleak possibility, considering that leaders of the ruling BJP had come out in support of Article 377, when it was in opposition. Home minister Rajnath Singh had told mediapersons back then that he supported Article 377 since homosexuality was an unnatural act and could not be supported.
With the Congress, which had supported the gay cause, now in shambles, and regional parties not too vocal about it, there doesn’t seem to be any pressure on the polity to bring about a constitutional change. But there will be pressure from civil society.
Repealing Section 377 will not only give gays and other discriminated sections such as the LGBT (lesbian, gay, bisexual, and transgender) community more acceptance in the society; it will give them more access to HIV/AIDS prevention efforts. Gay sex carries higher risk of exposure to HIV as compared to heterosexuals. But with appropriate education, use of condoms and advocacy of other safe sex practices, it can be prevented.
But this is easier said than done. While the world has moved ahead, India is still clinging to Section 377, enacted by the British way back in 1860. It criminalizes ‘carnal intercourse against the order of nature’ and reads: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life… and shall also be liable to fine.”
Section 377 imposed a blanket ban on all penile-non-vaginal sexual acts under the rubric of “unnatural offences”. It initially covered only anal sex, but later included oral sex and penile penetration of other artificial orifices.
Section 377 has served a useful purpose in cases of child sexual assault and abuse. But by criminalizing private, consensual same-sex conduct, it has become a weapon for police abuse, whereby, people are detained, questioned and harassed into payment of hush money. This has led many gays to go underground and adopt a cloak of silence regarding sexual preferences.
Right to privacy
In an effort to help them, Naz Foundation (India) Trust, a Delhi-based NGO working in the field of HIV prevention among homosexuals, filed a writ petition in the Delhi High Court (HC) in 2001. It challenged Section 377 under Articles 21, 14, 15 and 19 of the constitution, which deal with violation of right to privacy, dignity and health, equal protection of law and non-discrimination and freedom of expression respectively. It further said that psychiatry and psychology no longer treat homosexuality as a disease, but as just another expression of sexuality. It stressed: “No aspect of one’s life may be said to be more private or intimate than that of sexual relations, and since private, consensual, sexual relations figure prominently within an individual’s personality, they are an inalienable component of the right of life.”
It was a historical moment, when, on July 2, 2009, the HC passed a landmark judgment, holding Section 377 to be violative of Articles 21, 14 and 15 of the constitution, as it criminalized consensual sexual acts of adults in private. But the victory was shortlived, when the SC overruled the HC judgment.
The SC judgment, as expected, got support from religious leaders and it is hardly likely that parliament will take a decision on a contentious issue, where religion is stoked. Samir (name changed), 29, an upper middle class gay in a metro, says: “No one wants to meddle with religion. Despite my education and good financial position, I cannot come out in the open against Section 377, which is draconian. It should definitely be done away with. I don’t think I will ever see gay marriages legalized in India like abroad and the community is given dignity.”
But Samir’s plaintive plea is no match for the might of religious groups, who, across the spectrum, have been scathing in their criticism of the community. Baba Ramdev asked: “What is the contribution of homosexuals to the world, in the field of science, economics, etc? If our parents had been homosexuals, then we would not have been born. So it’s unnatural.”
Vishva Hindu Parisad (VHP) vice-president Om Prakash Singhal said: “This is a right decision (of the SC), we welcome it. Homosexuality is against Indian culture, against nature and against science. We are regressing, going back to when we were almost like animals. The SC has protected our culture.” Rabbi Ezekiel Issac Malekar, honorary secretary of the Judah Hyam Synagogue, was quoted as saying: “In Judaism, our scriptures do not permit homosexuality.”
Rev Paul Swarup of Redemption Church, Delhi, stated: “Spiritually, human sexual relations are identified as those shared by a man and a woman. The Supreme Court’s view is an endorsement of our scriptures.” Even Pope John Paul II launched a global campaign saying that “homosexual unions were immoral, unnatural and harmful.”
However, life lives on hope. Many have stood up against the SC verdict, including Bollywood personalities like Aamir Khan, Karan Johar, Farhan Akhtar and Amitabh Bachchan, economist Amartya Sen, author Vikram Seth and political leaders Sonia and Rahul Gandhi.
Experts say the SC can, under Article 142 of constitution, pass any order which will benefit both parties. In this case, it can change the 1860 law and exercise Article 19 and 21 which guarantees right to life with dignity. Many will cheer for it if this decision is taken. It waits to be seen what the final outcome will be.