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.
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.
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.
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.