By Ashok DEB
The landmark Delhi High Court judgment of 2nd June on decriminalization of same sex behavior may trigger implementation of some massive path-breaking LGBTI rights in India. This is quite an achievement in a nation of over 1.2 billion, where Homosexuality is grossly perceived to be non- existent, deviant or highly pervert. Presently Nepal is the only SAARC nation to have recognized the non-normative genders and same sex unions. However, the Indian developments could ripple positive vibes to the neighboring states forcing them to re-think about the discriminatory laws against sexual minorities. The final point of the judgment reads the following:
“132. We declare that Section 377 IPC, insofar it criminalizes consensual acts of adults in article 21 is violative of Articles of 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving the minors. By ADULT we mean who 18 years of age or is above. A person below 18 would be presumed not to be able to consent to a sexual act.
This clarification will hold till, of course the Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we believe can removes a great deal of confusion. Secondly, we clarify that our judgment will not result in re-opening of criminal cases involving section 377 IPC that have already finality. We allow the writ petition in the above terms.
JULY 2, 2009 S. MURALIDHAR”
The victory at the court has come nearly after a decade of hard fought contest. It all began when a group of Naz Foundation activists in Lucknow were charged with 377 A by the right wing BJP Government for distributing condoms and safe sex literature to MSM workers. In retaliation Naz Foundation filed a petition in the High Court directly challenging the constitutional validity of the law. The Sodomy Law Section 377 A had a much wider ambit beyond homosexuality. This law solely offered protection against the criminal violations of child abuse and male rape. So the petitioners requested the court to Read Down the law to its narrower interpretation, i.e., decriminalizing private consensual sexual relations between adults.
In 2004 the plea was dismissed by the court on the grounds of morality and prevailing societal norms. Subsequently the Supreme Court ruled that a PIL of such an importance could not be rejected solely on the grounds of PREVAILING MORAL NORMS alone. This allowed a re-appeal of the PIL against Section 377 A to be admitted for review once again. Obviously the British Era enactment Section 377 A was proving to be a major hindrance towards preventing HIV and venereal diseases among the MSM and Transsexual workers. Subsequently the movement got stronger with a coalition of 13 major NGOs, including some child protection organizations, voicing their concerns against the law in its present form. A breakthrough was finally achieved in 2008 when Delhi HC declassified homosexuality from the list of mental illness. Thus decriminalizing homosexuality gained momentum with the then Health Minister Ramadoss favoring legalization for same sex behavioral patterns.
A careful look at the 105 page judgment reveals that the Sodomy Law has in fact been READ DOWN to the desired concise interpretation where it still continues to govern the non consensual and under-age sodomy acts while sparing adult consensual same sex behavior. Much confusion arises whether the newly modified law will be able to provide adequate protection to those who do not conform to prevailing definitions of gender identities, Hizras, representing the third sex being one of them. Other way on the positive note, the spirit of the decision goes much beyond solely decriminalizing Homosexuality. The judgment has rightly referred to the Article 15 of the Indian Constitution which prohibits discrimination on grounds of sex, race or religion. On 20th July the Supreme Court refused to put the Delhi High Court decision on hold, which implies that same sex couples would also be entitled to marital unions and even adoption of kids. If all of the High Court suggestions are adhered by the Law Ministry, it may give the Indian homosexuals their much coveted piece of anti-discrimination legalization.
However the Delhi HC jurisdiction is valid only within its territorial limits. Thus the 377A writ loses its relevance across other parts of India. However a similar PIL verdict on 377 A is awaited in Mumbai HC soon. In India the Court orders are not mandatorily legalized, rather it depends on the electoral policy of the ruling coalition to floor a new law in Parliament for approval. Few of the milestone court verdicts on inheritance, divorce, adoption and equal opportunities could not be tabled due to the apprehension that they threatened to sway chunks of vote bank support. Initially the Home Minister P. Chidambaram and the Union Law Minister Mr. Veerappa Moily gestured considerable support towards ending the 1860 British Era sodomy law. Later Mr. Moily started seesawing his stance over this issue after facing stiff criticism from the religious leaders.
The legal battle is not all over yet, as Suresh Kausal, an astrologer has appealed against the decision. The concerned individual states that “if such abnormality is permitted, then tomorrow people might seek permission for having sex with animals”. Kaushal believes that decriminalizing homosexuality would increase the spread of HIV since “HIV virus is a result of unnatural sex”. Presently a delegation of Darul Uloom Deoband, All India Muslim Personal Board, Jama Masjid Imam and Islamic Peace Foundation are in discussion to chart out their future course of action pertaining to this ANTI-SHARIA issue. For the first time in the Nation’s history the Hindu right wingers of VHP, RSS seems to be uniting with the Muslim hardliners over the issue. The Catholic Church has reiterated that the Court order will not have any effect on their stance towards Homosexuality. The city of Delhi has experienced some severe anti-gay protests and subsequent rabid homophobic attacks by some fanatically aggressive organizations thereafter.
The Supreme Court has asked the Central government to take a definite stand on the issue. The Law Ministry plans to set up an advisory committee to carefully scrutinize the Court’s suggestions. The Government plans to table suitable amendments on Section 377 A IPC at the forthcoming Winter Session in the Parliament. Few distinct possibilities exist about the forthcoming legal reform.
Firstly, the Section 377 A could be read down as dictated by the Delhi HC, which will definitely blunt the massive brunt of the prevailing law.
Secondly, Section 377 A may be totally abolished and a set of new laws may be introduced to replace it. Section 377 A alone fails to cover all the aspects of sexual assaults experienced by the minor victims. For long the child protection activists have been demanding separate laws for child abuse. This time new enactments of protection against child abuse may be introduced by the Government. Similar legalizations could be also formulated for male rape.
Thirdly, new anti discriminatory laws could be proposed for sexual minorities, as directed by the Delhi High Court, which entitles them to the same rights and benefits enjoyed by a common Indian citizen.
Many observers are skeptical whether any enactments on section 377 A would be tabled in the Parliament at all. The Section 377 A judgment has definitely stirred up the highly puritan Indian society. Laws could be perceived as a reflection of societal parameters. Irrespective of individuals’ personal sexual preference, the Indian society en masse prefers puritan laws in public. Very few governments have dared to implement laws that directly oppose popular public sentiments. Worse still, by declaring that Section 377 will be discussed only at the winter session, the Centre may be deliberately trying to push it at the back seat. Many of the sensitive issues have met the same fate, where the tabling were intentionally and repeatedly delayed till it lost the relevance or societal opinions softened.
Lastly, a favorable legalization not necessarily ensures an outright end of discrimination towards the sexual minorities since deep rooted Homophobia imbibes the Indian mindset. But having a legal aegis of recognition and decriminalization will definitely assist in creating conductive ambience for co-existence of the homo and hetero communities in future times to come.