Mridula Shankar (EV 2012) with inputs from Radhika Arora (EV2012), BL Himabindu & Prashanth NS (EV 2010)  

M Shankar_pic

At the Global Day of Rage against the re-criminalization of homosexuality in India, a protester’s placard reads, “Went to bed in 2013, woke up in 1860.”

The path towards advancing sexual rights of Indians has been far from linear. On December 11, 2013, India’s Supreme Court (SC) reinstated Section 377 of the Indian Penal Code, drafted 153 years earlier under British colonial rule. The law deems “carnal intercourse against the order of nature with any man, woman or animal” criminal, thereby prohibiting any non-procreative forms of sexual intercourse. The weight of the law has fallen squarely on male homosexual sex. While this law may have been infrequently used in court judgments, its very existence is used as a basis for bullying and threats of arrest of gay men and transgender persons, harassment of NGOs working with sexual minorities and stigma and discrimination of these populations.   In one instance, staff from two NGOs (Bharosa trust and the Naz foundation) engaging in HIV/AIDS prevention work with sexual minorities were arrested under section 377 and remanded in custody for 48 days for “encouraging young persons and abetting them for committing the offence of sodomy.”

In 2009, in an internationally applauded judgment, the Delhi High Court (HC) ruled in favor of “reading down” Section 377,  thus de-crimininalizing adult consensual sexual acts in private.  This judgment, and the run-up to it are significant for the following reasons. First, key arguments in the case centered around the law’s violation of the fundamental rights of equality, liberty and non-discrimination enshrined in the Indian constitution, and its grave implications on the health of MSM (men having sex with men) populations, specifically in the context of HIV prevention and treatment. Second, the movement in support of repealing Section 377 saw the coming-together of diverse civil society groups (“Voices against Section 377”) working and advocating for human rights and social justice, forging national solidarity and bringing the issue of sexual rights into public domain, generating dialogue through awareness building and publicity campaigns.

As a reaction to the HC judgment however, a rare coalition of Hindu, Muslim and Christian groups formed to oppose the verdict and challenge it in the SC.  Their arguments were nothing new: homosexuality is a western construct; it fundamentally goes against the moral grain of Indian culture; sexual relations outside those shared between a man and a woman are sinful. Such sentiments reflect the uneasiness, or sometimes, downright denial of the role that sex and sexuality have played in the culture and history of the sub-continent. The Khajuraho monuments built in the 10th and 11th centuries and known for their erotic sculptures, depict sexual positions between individuals of the same sex; Vatsyayana’s Kamasutra- an ancient Sanskrit text on human sexual behavior, illustrates in detail homosexual acts between men, women, and eunuchs.  Vatsyayana himself expresses a certain level of disdain towards individuals engaging in these acts, however, at the very least, there is acknowledgment and some tolerance of homosexual behavior. Stories of male gods and men metamorphosing into women and vice-versa in the Indian classical works (Mahabharata and the Puranas among other epics) depict the plurality and fluidity of sexualities within ancient Indian society. (For more on this, see here) While the lens of hetero-normativity has never been cast aside entirely, criminalization of sexual practices came along with colonial conquest and has remained through independence, adding an additional layer of discrimination in a deeply patriarchal society where gender norms and relations of power operate through multiple mechanisms to subordinate girls, women and sexual minorities.

The December 2013 judgment of the SC comes as an offense to human dignity and equality and is in conflict with the ideals of justice. In January 2014, the SC refused review of this verdict, posing a dead-end to those seeking a judicial route to correct an archaic and discriminatory law. The consequences are enormous and will also be felt by the already marginalized transgender hijra communities across the country. The “unnatural practices” criminalized by the SC form an integral and visible component of their identity, sexuality and often livelihoods. They  will now face further harassment and humiliation by the police and greater insensitivity at the hands of an already unsympathetic healthcare system.

With national elections around the corner and in the current political and social climate, this human rights issue will not receive the due attention and priority needed for members of Parliament to agree upon and push for corrective legislation. While some political parties have publicly voiced their disappointment with this ruling, the BJP (the major party sitting in the Opposition) and its front-running candidate for the prime ministerial post, Narendra Modi, among others, are conspicuous in their silence on this issue. A parliamentary route to amend Section 377 in the near term appears bleak. In this milieu the role of international governments and donors is not to threaten sanctions or restrict international aid, but instead to be vocal about their dissent against the law. Further, India can and should be made accountable for violating the International Covenant on Civil and Political Rights, which it has signed and ratified, by having a national law that is discriminatory on the basis of sexual orientation of its citizens. This matter should be called to attention in public fora such as in multilateral global meetings, international sporting events, in the UN, and elsewhere. Donors and governments can also direct aid to improve access and the removal of barriers to healthcare for discriminated groups, while also funding civil society groups in the country to demand and push for the restoration of the fundamental rights of a significant section of the Indian population.

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