Back to Square One

India’s lesbian, gay, bisexual and transgender (LGBT) community and other sexual minorities had clearly expected the Supreme Court to uphold the judgment in 2009 of the Delhi High Court decriminalising homosexuality. They were encouraged to do so in the intervening four years by the willingness of public and media discourse in India to openly debate, even if only hesitantly, a hitherto taboo subject and to also link the rights of the LGBT community to human rights. However, the Supreme Court’s judgment overturning the lower court’s ruling has come as a shock to not only the sexual minorities but also to all citizens who believe that sexual orientation and its expression between consenting adults must not be criminalised. It will also shake the citizen’s faith in the role of the judiciary in upholding constitutional morality as opposed to “public morality”, particularly in the Court’s startling reference to the “so-called rights” of LGBT persons.

The order now criminalises any form of sexual relations, consensual or otherwise, apart from peno-vaginal intercourse. Considering that decriminalising homosexual acts between consenting adults is only the beginning of the battle to ensure that these citizens can also enjoy the legal rights that heterosexual married couples take for granted, this is a huge setback to the rights of the sexual minorities and to the implementation of the fundamental rights guaranteed by our Constitution.

The Court’s order will also affect much of the painfully worked out and fought for awareness about HIV/AIDS and its prevention. Since men who have sex with men (MSM) form one of the most vulnerable sections as far as HIV/AIDS is concerned, the order will only drive them underground, making it even more difficult to reach them and for them, in turn, to access health services. Several non-governmental organisations as well as government bodies like the National Aids Control Organisation (NACO) have already expressed their anguish on this count. The ruling also covers the sexual behaviour of heterosexual couples since the ruling applies to any act other than peno-vaginal intercourse, sexual acts outside this particular one performed by heterosexual couples are also now re-criminalised.

The Supreme Court’s stress on “unnatural” sexual conduct, regardless of age and sex, gives the State powers to morally sanction “certain” sexual acts. This also puts the onus of proving one’s normality in sexual preferences and practices on the individual, which goes against the grain of the Court’s own trajectory of expanding rights and, worse, it obfuscates the debate on sexual violence with regard to the question of consent. An interpretation of the law grounded on such moral sanction criminalises consent and threatens violence on the act of love. There was an old argument that repealing Section 377 will only help sexual abusers of children go scot-free. But this has lost its validity with the passage of the Protection of Children from Sexual Offences Act, 2012. Gender activists have also been campaigning for making rape a gender-neutral offence and have demanded that the non-consensual acts incriminated by section 377 be added to Criminal Law (Amendment) Act, 2013. The Delhi High Court’s judgment had clearly stated that Section 377 would be read down only in the cases of consensual sexual acts between partners who are adults. However, it is clear that the Supreme Court’s order will facilitate greater harassment of MSM and the transgender community, the latter, which due to deep socio-cultural prejudices, has limited choices of earning its livelihood, one of which is sex work.

Several religious bodies, who had been co-petitioners in the case, as well as political parties like the Bharatiya Janata Party, were quick to hail the judgment for “upholding Indian traditions” and “preserving family values”. Most television news channels pitted one token religious representative of either Islam or Christianity against a seemingly “progressive” talking head. This media representation undermined the fact that the views of the religious leaders – whether for or against the judgment – are not representative of the view of the Muslim or Christian communities at large. While none of the practising Hindus or their self-proclaimed leaders have felt the urgency to come out strongly to voice their “liberal” opinions, the use of a section of the religious minorities to denounce their bigoted counterparts is dangerous and has anti-democratic implications. This is especially so at a time when some political leaders are doing their best to polarise society along religious lines with an eye on the forthcoming general elections.

The Supreme Court has left the repealing of Section 377 to Parliament, citing that it is the Court’s job to interpret existing laws, not amend them. It is highly unlikely that a Parliament that did not include the provision of marital rape in the new anti-rape law under the pretext of saving the family will amend a section in the law that is often cited as being the harbinger of destruction of Indian family values. It was heartening that leaders of the ruling Congress Party came out openly in support of reading down Section 377 to decriminalise consensual adult sex, but the government does not seem to be in much of a hurry to act. Some political parties, including sections of the left, have dismissed the fight against Section 377 as being insignificant and lower in the rung in the larger fight for equality and justice. Both the noise and silence of political parties around Section 377, however, point to one thing: our politicians well know that sex and sexuality, being intimately personal choices, are also deeply political and could affect vote banks in their favour or otherwise.

In a democracy, human rights cannot be ranked on a hierarchy of urgent and non-urgent. Nor are the rights covered by the recent Supreme Court order of significance only to the sexual minorities. We cannot afford to ask for whom the bell tolls, it tolls for all of us.