https://indiatoday.intoday.in/index.php?option=com_content&task=view&issueid=114&id=51030&Itemid=1§ionid=36
We declare that Section 377 of the IPC, insofar it criminalises consensual s*xual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution.” Paragraph 132 of the July 2 judgment of the Delhi High Court Bench comprising Chief Justice A.P. Shah and Justice S. Muralidhar.
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Legal victory
The judgment has given the community the right to live and love, but what does it mean?
India is the 127th country in the world to decriminalise homos*xuality. Nations such as Turkey, Saudi Arabia and Iran still ban it.South Africa is the only country which prohibits discrimination based on s*xuality by stating so in the Constitution.
By implication, oral and anal s*x between consenting adults in both heteros*xual and homos*xual cases have been legalised, which was not the case earlier.
But Section 377 of the IPC will continue to govern sodomy rape and paedophilia. The judgment defines an adult as 18 years and above.
The verdict calls for the Government to repeal the section and offences like sodomy rape and paedophilia to be transferred to Sections 375 and 376 that deal with rape.
There is still no clarity whether the judgment would apply only to Delhi or to the entire country. But the judgment has given a ‘persuasive value’ in such matters.
The government can appeal against the judgment in the Supreme Court which is unlikely, or it will have to take a view in the matter, if someone else approaches the apex court.
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When these historic lines were read in the courtroom, a surge of emotion cut through the crowd, most of them holding hands, tears brimming in their eyes. As they walked into the street, the celebrations began. It was their moment of reckoning.
Suddenly, the community known by the awkward acronym of LGBT (Lesbians, Gays, Bis*xuals and Transgenders) had acquired the right to live and love the way they wanted. Homos*xuality, so far a crime at par with paedophilia and s*x with animals, had been decriminalised.
It hasn’t been easy. The verdict is a result of a move initiated in 2001 by a heteros*xual woman, Anjali Gopalan, founder of the Naz Foundation, who had sought judicial intervention to strike down certain provisions of the archaic Section 377 of the IPC 1861. The court dismissed it out-of-hand at that point, but five years later, the Supreme Court referred it back.
This time, with the help of a team of committed advocates of the Lawyers Collective under the leadership of Anand Grover, they triumphed. The timing couldn’t have been better. Not only have urban Indians got used to watching gay men on soaps (Jassi Jaissi Koi Nahin) and in glossy movies (Dostana) but they’ve also been witnessing colourful parades across its metropolises like Kolkata, Bangalore, Chennai and Delhi.
For men who sleep with men and women who go to bed with women, it is the validation they have been looking for. Take Mayank Sharma, 28, an entrepreneur, and Rajeev Chandran, 25, a software consultant from Bangalore.
Both are elated despite knowing the limitations: “There are many things that still need to change. We would like to adopt a child, but Indian laws allow single fathers only to be given male children.”
The sentiment is echoed across the nation; this joy is tempered with caution. Especially for those who have devoted their life to the cause. Like 63-year-old Ashok Row Kavi, one of the first gay men in India to come out of the closet. He argues that the marginalised sections of the LGBT community are being victimised not because of the Section 377 of the IPC but under municipal acts such as the Goonda Act and Public Order Act.
According to Alfred Kinsey’s seminal study in the 1950s, homos*xuality is prevalent in 10 per cent of s*xually active males. Kavi says that would mean there are at least 30 lakh gay men in India. It could be more.
Fifty-five-year-old Delhi-based photographer, Sunil Gupta, who has been a witness to the Delhi gay scene for the last 35 years says, “Many gay men were forced to marry and lead the life of a heteros*xual. But they have secretly kept their gay relationship alive by staying in proximity to their partners as neighbours or colleagues.”
While questions still surround the geographical spread of the judgment, 23-year-old lovers from Kolkata, Pinaki Ghosh and Jayanta Roy, are already dreaming of the day they can get married. They can’t still live together and often have to listen to sniggering if they get too close to each other while taking public transport. It’s the same with 40-year-old doctor Zahid Shafi Ansari and 43-year-old Ranjan Koul. They met five years ago on a gay chatting website and have been a picture of domesticity since then.
But if gay s*x is coming out of the closet, lesbianism is still firmly locked up. “Society feels more threatened by women more than men because they are seen as the upholder of traditional values,” says Pramada Menon, founder-member of the Delhi-based Creating Resources for Empowerment in Action. It is no surprise, therefore, that suicide rate for lesbians in India is high. There were 24 documented cases of lesbian suicide pacts between 1996 and 2004 in Kerala alone.
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Reactions
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Bangalore: The verdict against Section 377 has them understandably elated. Mayank Sharma, an entrepreneur, and Rajeev Chandran,a software consultant, have been together since 2004. They go on annual holidays, meet for coffee in between busy workdays and plan a future together. But both still continue to struggle with parents and the immediate family.
“My ideology of a partner became clear and I was convinced about my s*xuality,” says Chandran who had an unhappy marriage that lasted for six months. The couple feels that the verdict is the first step towards a more equal society free of prejudices. “But there are many things that still need to change,” they say.
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Kolkata: Like any other couple,all they want is financial security and a home. Their families are aware of the relationship and have not stood in their way.
“My father advised me that my focus in life should not be my s*xuality but a good job,” says Roy, an IT professional based in Kolkata. Ghosh, who works for an NGO, Pratya Gender Trust, is pursuing his postgraduation in environment studies.
Says Ghosh, “Once travelling in a bus and talking to each other much in the fashion that lovers do, I heard a girl saying, looks like Dostana chal raha hai. We got down from the bus. But rest assured, now we will not do so. If I love him, then the world might as well know that. Who do we have to fear?”
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Delhi: Zahid Shafi Ansari, a doctor, found Ranjan Koul,who works in the development sector, on a gay chatting website.
“We knew we were looking for each other,” says Ansari, whose father could never reconcile to his idea of s*xuality. “He would tell me that I am sick and a coward, for needing the support of another man,” he adds. Koul faced a different reaction.
“When I told my parents I am gay, they just did not respond to it. They never talk about it,” he says. But somehow Koul’s mother has not given up, she still has a glimmer of hope that her son will marry a woman one day.
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Most shocking was the case of two married women from Chennai, Christy Jayanthi Malar, 38, and Rukmani, 40, who set themselves on fire after years of harassment. Indeed, the law cannot wipe out years of prejudice against same-s*x relationships. What will help is a change in society, brought about by courageous people like 30-year-old Rose, India’s first transgender TV show host. “Earlier, I was looked upon as an object of ridicule. Today, people come to take my autograph,” she says.
It is people like Rose who will take the LGBT community out of the little alcoves they have been forced into, whether it is the Azaad Bazaar in Bangalore, India’s first store stocking gay pride costumes, or the Pahal Foundation that runs India’s first queer beauty parlour in Faridabad. In practice, Section 377 is hardly used against homos*xuals. “In as many as 90 per cent of the cases, this Act is used in the matters of child abuse,” explains Shivangi Rai, who was a part of the team of Lawyers Collective.
The judgment may not be a magic wand. For instance, 27-year-old Akram who works for a publisher and is in relationship with a 33-year-old lawyer Mahesh (names changed on request), prefer anonymity to being branded. Because branding translates into discrimination and embarrassment. Gay activist Gautam Bhan sees the judgment not just as a victory for homos*xuals but as a triumph of the Constitution of India.
For Gopalan, it may just be the first small step, “but it’s still a giant leap, in the right direction”. And for that there is a long battle ahead. Baba Ramdev has moved the Supreme Court against the judgment. The Government will now have to shed its ambiguity and take a clear position on the issue.
There is also a need for a public debate so that there exists a better understanding of homos*xuality amongst the majority heteros*xuals. So that, as writer Vikram Seth says, the malign influence of bigots, often backed by an inhumane interpretation of or unthinking emphasis on religion, cannot, in a seculiar state, affect the freedon and happiness of tens of millions of people.
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Ride to pride
It’s taken the LGBT community two decades to gain an equal and legal status in the society. Almost.
1989: Ashok Row Kavi, one of the first few to come out of the closet, is alarmed by the refusal of funds to organisations like ACT UP to treat gay people at an AIDS conference in Montreal. 1990 Kavi starts Bombay Dost, Mumbai’s first gay magazine, addressing issues like HIV.
1992: Bombay Dost realises it cannot handle all the letters and ties up with evolving gay groups in Delhi, Kolkata and Bangalore. It later evolves into the The Humsafar Trust (HST).
1994: The Naz Foundation is set up in Delhi by Anjali Gopalan, who had earlier worked on issues related to AIDS, marginalised communities in the US and wanted to continue the work in India.
1995: The HST conducts a series of gay conferences across India for the first time and educates people about health issues and social pressures.
2001: Naz files a Public Interest Litigation challenging Section 377 of the Indian Penal Code in the Delhi High Court that considers homos*xuality a criminal offence.
2005: Author Vikram Seth becomes one of the first Indian public figures to come out of the closet.
2008: A gay pride parade is held in Mumbai. Homos*xuality comes out on the street and on the front pages.
2009: Homos*xuality is decriminalised in India.
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