(A shorter version of this article had appeared earlier which has been expanded)
“It takes no compromise to give people their rights… it takes no money to respect the individual. It takes no political deal to give people freedom. It takes no survey to remove repression.” – Harvey Milk
I was an exchange student in Paris when the Delhi High Court led by Justice AP Shah passed the historic judgment in 2009 decriminalising homosexuality. As a young, politically conscious journalism student, who was still experimenting with his sexuality, it brought a complete new high to my life. In a country that gave the free world the concepts of Liberté, Egalité, Fraternité, I was now boasting about the strength of my own country’s democracy. India to me, then and now, remains an idea that has equal space for everyone irrespective of caste, creed, religion, region, race, gender and then sexuality. In his judgment, Justice Shah wrote about ‘inclusiveness’ being the underlying theme of the Indian Constitution. This further strengthened my belief in the Constitutional framework. In typical Bollywood-style irony, I rediscovered my patriotism on foreign soil — not because India had won a cricket match against Pakistan, neither because I was discovering myself as a homosexual, but because finally, Indian democracy had legally recognised an important section of its citizens: the sexual minorities.
A few days later, I remember proudly walking the streets of Paris on Pride Day as I watched French gay and straight men dance to AR Rahman’s Oscar-winning song Jai Ho! from Slumdog Millionaire. It was the year of India in France and the year India joined the international community in recognising the very basic human right of its sexual minorities.
And sadly, a little less than five years later, that ‘idea’ of India seems to be over for us as Indians. While France went a step ahead in strengthening rights for sexual minorities by adopting a law that legalised gay marriage, the Supreme Court of India reversed the Delhi High Court judgment by reinstating a British-era draconian law that not only criminalises gay sex, but also equates homosexuals with zoophiles and paedophiles. While lawyers took their time to ‘interpret’ the 98-page judgment, a cursory read would make any sane person’s blood boil.
“Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes…” So, who defines what the order of nature is? By what logic do two Supreme Court judges decide what that order is for everybody else? How do their lordships know that my sexuality is against the order of nature? Most importantly, how does one interpret the Indian Constitution? Is it by order of nature or constitutional morality? The Supreme Court cannot act as a khap panchayat when it really should be a guardian of the constitutional rights of its citizens.
“While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders…” Has there been any survey of gays, lesbians and bisexuals in this country? Do the judges really know the difference between gays, lesbians and bisexuals vis-à-vis transgenders? Mixing up alternative sexuality with the third gender is a mistake that comes from the ‘community’ within, and is sadly promoted by the media. Even on the issue of alterative sexuality, how can you have a census based on sexual orientation?
Even if there was a survey, it is hardly plausible that people in a deeply prejudiced society like India would tell the truth. One cannot even get their post-poll surveys right in this country, forget about sexual surveys. Personally, I do not agree with the idea of using sexuality as parameter to create communities. I feel it defeats the purpose of acceptability in the society when you create the idea of the ‘other’ but that’s a debate for another day. Let’s look at another gem of a statement in the judgment: “In the last more than 150 years, less than 200 persons have been prosecuted.” So, basically the lives of 200 Indians do not matter and they are not citizens enough. Your lordships, if the law has only prosecuted 200 Indians, what is the need to have such a retrograde law?
And then it is deemed as more fitting for Parliament to repeal or amend the law if it feels so. Since when did the Parliament of India become the guardian of the Indian Constitution? As Additional Solicitor General of India Indira Jaising rightly pointed out, it is the constitutional duty of the Supreme Court to protect the basic human rights of ordinary Indian citizens. How can the Supreme Court pass the buck to the Parliament, which in recent times, has not even been functioning properly?
The guardian of the Indian Constitution, the father of so many landmark judgments that gave rights to most minority groups in this country — Muslims, Christians, Dalits, tribals, women — has left one of the largest minority segments of the country an orphan. Today I know how it feels to be a minority in your own country. Today I know how Dalits feel when upper caste men burn down their houses and declare them untouchables. Today I know how Muslims feel when Hindu fanatics declare them non-Indians. Today I know how Ahmadis feel when a majority of their own community think that they do not have the right to live. Today I know how Christians in Odisha and Karnataka feel when their churches are vandalised. Today I know how it feels when young men and women are forced to follow diktats from khap panchayats. Today I know how it feels when Kashmiris are declared terrorists. Today I realise what it feels like when the same Kashmiris refuse to accept the pain of their fellow Kashmiri Pandits. Today I know how it feels when Manipuris are called foreigners on the streets of Delhi. Today I know what it feels to be a lone woman walking on a deserted street. Today I am a minority, a criminal in my own country.
What hurts more is that the same people whose rights you have been advocating for years refuse to accept that you have rights too. Stuck in their medieval mental set-up, they believe that the only minorities in the country are from their own religions, the only equality that should exist should be for their own communities, the only form of intolerance that exists in the country is from others. It amazes me that the same All India Muslim Personal Law Board, Utkal Christian Council and Apostolic Churches Alliance, which talk about minority rights, would be so instrumental in denying sexual minorities their rights. Sections of other religious groups, including Hindu ones like the Sanatan Dharam Priniti Sabha have contributed to creating this human rights disaster in the largest democracy on earth.
I find each and every argument put forward by these homophobic groups highly disturbing, as there is a danger that in the future (there have been instances in the past as well) the same arguments would be used against religious minorities. For instance, the argument of personal choice becomes laughable, as religion might be a choice, but sexuality or gender isn’t. If majoritarian choice is to be dubbed as the rightful one, the first victim in a religiously diverse nation would be the religious minorities. K Radhakrishnan of Trust God Missionaries quotes a Sanskrit phrase which translates to “you are dust and go back to dust”, and suggests that Section 377 IPC was enacted by the legislature to protect social values and morality, without realising that it was enacted by Victorian-era Britain and it has been repealed by the UK more than four decades ago. Anti-apartheid leader Nelson Mandela, who passed away recently, repealed a similar homophobic law immediately after coming to power. Even in Nepal, an erstwhile Hindu Kingdom, homosexuality has been legalised and the country now has its first openly gay Member of Parliament in Sunil Babu Pant. Pant has been using references from Hindu scriptures to show how homosexuals as well as transgenders have been part of mainstream South Asian societies for centuries.
The most heartening comment I heard was from JD(U) leader Shivanand Tiwari on the morning of 11 December. A politician from the Hindi heartland of Bihar, Tiwari was clear with his views. “You cannot close your eyes and wish away homosexuality,” he said. “It’s been the reality since centuries and is even mentioned in our own scriptures.” The government, of course, refuses to take a clear stand on this issue. Its own ministries have done flip-flops on the matter in the Supreme Court. It will be extremely foolhardy to expect the government to push through such a progressive legislation. TMC leader Derek O’ Brien, who is a supporter of sexual minority rights, was frank in acknowledging that it might take nearly 15 years to have the Indian Parliament pass such a law. Law Minister Kapil Sibal and I&B Minister Manish Tiwari both seem to suggest that the government might take the legislative route to address the issue, but knowing how many years the Women’s Reservation Bill has been stuck in Parliament, there are no prizes for guessing the future of a bill on sexual minorities.
Then there is the issue of social health that has been closely associated with recognising the sexual minorities. After section 377 was struck down in 2009, HIV/AIDS in India came down by 57 percent. In fact, former health minister A Ramadoss had been supportive of repealing section 377.
But I feel at the end of the day, the Supreme Court’s judgment is not just about the gay community anymore. Like it or not, it is about the very idea of India. Since the time our forefathers sat down to frame the Constitution and decided for us the kind of India we should inherit, it is about that India. Sadly, today, more than 65 years after Independence, we are still stuck at the beginning. What kind of India do we want? The fight is still between two schools of thought — the first is the kind that supports equality for all across caste, religion, sex and sexuality; and, the second still believes in a country where certain sections of the society are more equal than others, and some are not equal enough.
Unfortunately on 11 December 2013, the Supreme Court of India sided with the second group. In the process, it violated the following three Articles enshrined in the Constitution:
“The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” (Article 14)
“The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” (Article 15)
“No person shall be deprived of his life or personal liberty except according to procedure established by law.” (Article 21)
With inputs from Nupur Sonar
The fight through the years
A chronology of the decade-long struggle for equal rights of India’s LGBT community
2001: The Naz Foundation filed a PIL in the Delhi High Court, asking for decriminalisation of gay sex among consenting adults
September 2004: The court dismisses the PIL on 2 September. Later that month, gay right activists file a review petition in the court
November 2004: The high court dismisses the review petition
December 2004: Gay rights activists approach the Supreme Court of India against the order of the Delhi High Court
April 2006: The apex court directs the high court to reconsider the matter on merit
September 2008: The Centre seeks more time after contradictory stands between the home and health ministries over decriminalisation of homosexuality. The high court refuses to admit the plea and final arguments on the case begin. On 25 September, gay rights activists contend that this is a fundamental Right to Equality and the Centre cannot criminalise homosexuality on grounds of morality. On 26 September, the Delhi High Court pulls up the Centre for filing of contradictory affidavits by the health and home ministries. That very day, the Centre says that gay sex is immoral and perverse
October 2008: The high court pulls up the Centre to justify the ban on gay sex with scientific reports, rather than relying on religious texts
November 2008: In its written submission before the court, the government says that judiciary should refrain from interfering in the issue as it is basically for Parliament to decide. On 7 November, the court reserves its verdict on petitions filed by gay rights activists seeking decriminalisation of homosexual acts
July 2009: The high court allows the plea of gay rights activists and legalises gay sex among consenting adults. On 9 July, a Delhi-based astrologer challenges the court’s verdict in the Supreme Court
February 2012: The apex court begins final day-today hearing in the case
March 2012: The SC reserves its verdict
December 2013: The apex court sets aside the 2009 Delhi High Court order, which had decriminalised gay sex