View: Strike down Section 377 as it has no place in today’s India

Written by Vikram Doctor,
Jan 13, 2018

For The Economic Times

If, in the course of this year, the Supreme Court of India finally declares that Section 377 of the Indian Penal Code (IPC) must stop criminalising consenting adults in same sex relationships, it will be almost 18 years since the current battle to change the law began.

In the current state of the Supreme Court, of course, all bets are off. But if it happens, it will mean a generation of young lesbians, gays, bisexuals and transgender (LGBT) people will have come of age in the time taken to fight the case. They have helped change the world in which the case is being heard, and will determine where the future challenges for LGBT people will lie.

In all this time, of course, the basic logic of the case has never changed. It was always absurd to treat people as criminals for something intrinsic to them. It was always absurd that love between consenting adults is subject to the censure of the state.

And it was always absurd beyond belief that the 19th century British law that underpins this, continues to apply in such a different time and place. Last year marked the 50th anniversary of the UK removing the law itself, and yet that same proscription continues to apply in India.

But if the reason for the case has never changed, the context in which it was fought has. Partly it was time and the transformation in the world at large. With most of the world moving towards acceptance and the matter-of-fact integration of openly LGBT people into regular aspects of life, India is an increasingly awkward fit with the mostly fervently religious countries that still strongly oppose LGBT rights.

New Horizons
The growth of new industries in the digital, service-oriented and creative fields has also increased the push towards LGBT rights. It’s not quite correct to assume the older industries of manufacturing, farming and resource extraction were intrinsically homophobic. The British film Pride, based on a true story of gays and miners supporting each other in the Thatcher years, showed how attitudes can change and, trade unions today are often strongly LGBT supportive.

But the newer industries allowed for greater diversity — in fact, required it, since success in them came from mental and physical skills that weren’t, literally, embodied in how one looked or behaved. Knowledge-driven industries couldn’t afford to lose the people they needed just because of their race, sex or who they slept with. And countries that saw such industries as their future had to realise the same.

One of the unexpected beneficiaries of the call-centre boom were young LGBT kids from middle-class families and small towns. At one time such kids would have had no option but to follow their families’ choices for them, getting married before they had any real chance to understand their sexualities. But call centres, with their constant need for new young workers, offered them jobs at just that young adult phase.

The salaries often equalled what their parents earned, so couldn’t be countered. Best of all, all that mattered was your voice and how you used it, not how you looked and who you flirted with. Call centres opened horizons by specifically teaching their young workers to deal respectfully with possibly gay and lesbian customers abroad — an important lesson for their straight workers as much as their gay ones.

Homophobes often fume about the entertainment world promoting LGBT rights, not least because so many LGBT people work there. This is, again, not entirely right since the entertainment industry is as profit-driven and risk averse as any mainstream industry and has actually tended to lag social change in how they show the LGBT community. Hollywood, as much as Bollywood, is happiest with the unchallenging stereotypes used for mainstream entertainment, in Will & Grace as much as Dostana.

But in the end, the entertainment industry catches up and, rather than influencing change, is a barometer for how much has changed. The fact that a gay romance like Call Me By Your Name is a top Oscar contender — just a year after a gay film like Moonlight won — reliably indicates mainstream acceptance, as much as the now fairly routine inclusion of LGBT characters in Bollywood shows. When Sridevi, in her hit film English Vinglish, reproved a homophobic comment about her gay English teacher, she sent a quiet message not just to young people watching, but also their parents’ generation, who would have idolised her.

Perhaps the biggest sign of how far change has come was provided by the anti-Section 377 legal battle itself. The recent stimulus in the process came from a new petition filed by a group of LGBT people, led by the noted dancer Navtej Singh Johar. This might seem routine, but in fact represented something new since none of the petitions in the past involved LGBT people themselves.

The reason for this was simple. When a law defines someone as a criminal, it is hard to challenge it for fear of losing, and having one’s criminal status confirmed. Reading the actual wording of Section 377, where the punishment prescribed is “imprisonment for life, or with imprisonment of either description for a term which may extend to ten years” is an excellent deterrent to challenging it.

Legal Raps
Around 2000, when activists in India started considering filing a challenge, no LGBT person was willing to take the risk of becoming a petitioner. Instead, Naz India Foundation, an organisation headed by Anjali Gopalan, that dealt with HIV prevention — working with the Lawyers Collective, headed by Anand Grover — filed a case based on the problems Section 377 caused in preventing the spread of HIV.

Because gay men are at high risk for contracting HIV, any effective programme needs to be able to address them — but this was hard when they were also at a risk of being arrested. (The argument that the law itself prevents the spread of HIV by deterring gay men from having sex simply doesn’t work in practice. It just drives homosexual behaviour further underground and makes it harder to tackle the HIV risk.)

An earlier attempt had in fact been made in 1994 by the AIDS Bhedbhav Virodhi Andolan (ABVA), a NGO that was stung into doing it by the news that Kiran Bedi, the highprofile police officer in charge of Tihar Jail, had banned the use of condoms to control HIV. Any use of condoms there, she reasoned, would be for homosexual sex and that would contravene Section 377. ABVA’s petition challenged this inconsistency between trying to prevent the spread of HIV and upholding the law. It was an important step, but perhaps too soon to expect logic to prevail and the case languished and was eventually dismissed.

The case filed by Naz in 2001 did progress, though with several set-backs. At one point, the Delhi High Court threw it out on the grounds that Naz had no locus standi, since no LGBT people were directly shown as victims. This was appealed in the Supreme Court, which agreed that the matter was important and that Naz has locus, and the case went back to the Delhi High Court. To bolster the campaign, an organisation called Voices Against 377 was formed and also filed a petition.

In July 2009, a Delhi High Court bench made up of Chief Justice AP Shah and Justice S Muralidhar finally delivered a victory with a verdict strongly supporting LGBT rights. But this was immediately challenged in the Supreme Court and to defend it several petitions were filed — from a group of parents of LGBT people, a group of teachers, a group of psychiatrists and the filmmaker Shyam Benegal in his individual capacity.

Despite this formidable line-up of support, and the considerable legal talent that came on board to represent the petitioners, in December 2014, Supreme Court Justices GS Singhvi and SJ Mukhopadhaya overturned the earlier verdict in their decision of Suresh Kumar Koushal vs Naz Foundation. A great deal of analysis has gone into exposing the flaws in the Koushal decision, but perhaps the most quietly damning comment came from retired Justice Leila Seth, in a piece written in the Times of India in January 2014. Beyond all the deficiencies in the verdict, she wrote she was pained by how “the interpretation of law is untempered by any sympathy for the suffering of others”. There was ample evidence that LGBT people suffered under the law, but the verdict refused to consider this.

There was an echo here, perhaps, to another famous setback for LGBT rights — the 1986 US case of Bowers vs Hardwick where the US Supreme Court declined to strike down the rights of states to discriminate against homosexuals (this was reversed 16 years later in the case of Lawrence vs Texas). The deciding vote in that case came from Justice Lewis Powell who later told one of his law clerks that he didn’t think he had ever met a homosexual. In reality, he had at least two gay clerks, but who were never open about their sexuality. Powell later admitted that his decision in Bowers might have been a mistake.

Direct Approach
The lessons activists have drawn from this story is that in pushing for change those who desire it most must be open about who they are and why they want the change. Menaka Guruswamy, the Supreme Court lawyer behind the recent petition filed by Johar and other LGBT people, felt that the case had to have this. “There is something very basic to law about it,” she says. “You approach the Court directly saying that you have been harmed by the law and you want it to change. It is a very powerful position.”

Even now, she admits, it wasn’t easy. Many people whom she approached had cold feet at the last minute, but finally, this time, she got a group of LGBT people willing to stand up for themselves in court. Johar was joined by his partner, journalist Sunil Mehra, chef, restaurateur and author Ritu Dalmia, hotelier and writer Aman Nath and business consultant Ayesha Kapur.

On January 8 this year, Chief Justice Dipak Misra passed an order directing that their case be taken up for hearing before a larger bench: “Social morality also changes from age to age. The law copes with life and accordingly change takes place,” he wrote. And in a sentence that stands as a rebuke to that lack of sympathy in Koushal criticised by Justice Seth, he wrote firmly: “A section of people or individuals who exercise their choice should never remain in a state of fear.”

What happens next is an open question, especially given the current state of turmoil of the court. Yet it is also a sign of how much attitudes have changed that, in view of all the highly contentious matters facing the court — the Babri Masjid, the beef ban in Maharashtra, aspects of Aadhaar — the fate of Section 377 seems relatively less trouble to decide.

In all the other matters, it will be impossible to deliver a verdict that will not inflame some section of society. Deciding against Section 377 will definitely provoke some criticism, but much of the media, most social influencers and young people in large numbers will support the decision. Even most major political parties are now tacitly in support, even if they are unable to pass any legislation on Section 377 themselves — the general feeling seems to me that any action is best done by the Supreme Court.

A decision to declare Section 377 inapplicable to consenting adults would also be applauded around the world. Based on simple population statistics, a decision to change the law would, at one shot, remove the stigma of being deemed a criminal from more than one-sixth of all LGBT people in the world. It would be one of the largest leaps for human rights at any one time anywhere.

Whatever turmoil the Supreme Court is currently heading into, it should not come in the way of coming to a decision that is long overdue and striking down a law that has no place in India today.

Gay Bombay Special Sunday Meet: “Privacy & The Law” an A-Z: Report (09/2015)

Sachin Jain

Introduction: People are becoming open online when technology, from WhatsApp to Grindr, collides with real world. Extortion cases and breach of privacy are hot topics now. Even the Supreme Court has been asked to define privacy by government. Vijay Hiremath, an independent human rights lawyer practising in Mumbai, has been dealing with cases related to privacy with LGBT community for over a decade. This report is a transcript of conversations which may provide insights on contemporary privacy issues in Mumbai. It is in no way prescriptory and opinions expressed in discussion are not necessarily of Vijay, Gay Bombay or the report writer.

Blackmail: IPC 389 against blackmail under 377 exists to prevent misuse of 377. Also you have autonomy to reveal if you had sex or not.

Complaints: Cases normally happen in triangles, jilted lovers, etc. That’s the only time police comes. Belgian gay fashion photographer arrested; He had photographed one person, thanks so much reply received. He had rejected another for photo shoot and friendship, who complained. Even though no minors were involved, they still filed case under IT act as nude photo sent on email.

Condoms: Carrying condoms with you, anytime, anywhere, is not a problem and does not signify intention to have sex.

Cross-dressing is not an offense though harassment exists.

Dating Apps: Grinder and PR are a grey area. Men meeting for sex or friendship? Having an account is not an offence, but putting self porno material on is an offense, if someone complains. Nudity as pornography is a grey area, as “prurient interest” is not defined. Previous communication like sexual likes can be used as evidence.

Extortion: After 377 went, extortion cases reduced, but now cases have increased after recriminalization. Typically post-party stranger home-taking drink spiking leading to robbery are common.

Hotels and bars: Using hotels is extremely risky for the community. Precaution may be to use high-end hotel, end up paying more but is safer, and police will think twice. Recently in Mumbai the police raided hotels and took out couples from rooms to police station. They had given correct IDs, and charged them in indecency in public, and produced in court and released them as bailable. It was very humiliating. Case is before high court. Despite backlash, there is no guarantee that this will not happen again. Raids in hotels are easiest even in heterosexual cases, under pretext of cracking trafficking rackets. A Colaba cabaret bar had some topless performances decades ago, patrons filed case of being offended, court dismissed saying you went there yourself. Basic point is not to get paranoid, most of the police or government is not interested despite some busybodies, but its still relatively rare in Bombay. Court has said they will frame guidelines about raids, but none exist yet.

Lawyers: At first instance itself you can ask for a lawyer and wait for 5-10 minutes to speak to lawyer. Technically they need to keep for 24 hours but they can call you everyday and harass you. You can refuse to answer questions, but name and address have to be given.

Minors: Even if counselling informally, always make good intentions clear. If counselling unknown person over email, declare presumption that all conversations are with majors.

Office: In office harassment, document it by sending an email to your boss, and companies take action even when there are no rules.

Parties: Nowadays they are assumed to be easy. The amount of work behind the scenes, who know how to handle cops and excise issues are difficult. Parties also advertise about dark rooms, and sex, which opens self to police raids.

Police entry in premises: Do police have right to enter premises? Generally no, you can ask why you have come, but there is no blanket ban. Only if they fear crime (even sodomy) is being committed, like suspect taking a minor to the bedroom they can enter without a warrant. While dating, anyone even a day below 18 years could cause massive problems due to POSCO law. Case can be filed any time in life, there is no time limit so see ID of people you take things further with if young.

Pornography: Sections 292, 293 and 294 of IPC deal with pornography. The basic rule is that you cannot circulate it, can use it for yourself, including pics and stories. Don’t send it. Child pornography punishable for 5 years. Ensure you do not have any such porn even mistakenly. It is easy to find out through phone or hard disk. Emailing, clips by Whatsapp or DP pictures can be problematic. Police also ask people for passwords to mobile to check for pornography. This is also a grey area. You try to get away by asking reason for why checking phone. Storage of porn is fine: on a raid the police found a room full of porn CDs, and the guy said they are for consumption, the Court and accepted. Watching porn in public, with others watching can be a problem if they complain. Do not send video clips of yourselves having sex on the internet. Carelessness and stupidity have no solution.

Public obscenity: If you show a play or movie where 2 men have sex it is not an offence as long as people don’t object. Then court has to decide, which is why those who come for film screenings we have people sign an undertaking saying they have come here of their own free will and don’t object to films shown. Obscenity in public is not defined. We live in a country where spitting is okay, kissing isn’t.

Resistance: IPC 353 is stopping public servants from performance of duty so it is not possible to stop the police. False cases have been filed when guys get aggressive against the police, so be careful. If somebody stops you in the middle of the night, asks for address, give some address but don’t refuse. Under Bombay Police Act after sunset anyone caught with anything that can be used to break open a lock, for housebreaking. 197 CRPC requires government sanction for prosecuting police while on duty. Important thing is calibrating risk. Anyone can be picked up from questioning anywhere, not only cruising place. If you are scared, they come after u so if u hold your own, rather than crying, don’t tell my parents/wife etc.

Section 377: The biggest problem continues to be 377 sword hanging on our heads and Victorian laws. As long as that is there, peripheral problems, arrest and extortion will continue. 2 consenting men having sex and being found out is an offence and can be prosecuted. Type of prosecutions including wives of gay men finding out their affairs. RTI across Maharashtra reveal numbers are huge. Not only men having sex with each other file cases, but also wives against heterosexual husbands, when they can’t prove rape, or when they discover husbands are gay. What the government is arguing is that 377 is not used is not true; as shown by RTI. Similar RTIs have been filed in Karnataka, Orissa and Manipur. Oral and anal i.e. penetrative sex counts as sex.

Sex toys: Selling is a problem, but having it is not. NGO having dildo to demonstrate condom was used as evidence for sex racket. But there are also NGOs doing programs with police where they learn to put on condoms on dildos.

Suicide notes: IPC 306 most misused, was originally for harassed married women. Cops can question or arrest for abetment, but courts take liberal view, grant bail and quash case. Such things are happening on email, and sending pictures of self-suicide on Whats app such chatting in case gets serious you should tell the police. If you don’t tell and it happens then you are in bigger trouble.

Videographing: Taking videos of police or vigilantes is up to you based on the situation but could lead to aggression so ask first or take a call.