India’s Supreme Court overturning a historic lower-court decision on homosexuality, making gay sex a crime in the world’s most populous democracy, has generated fury, disgust and disbelief among the lesbian, gray, bisexual and transsexual community.
The court’s verdict comes as a blow to the country’s roughly three million-strong gay and lesbian community. It is being regarded as regressive and interfering, and an infringement on the rights of liberty and equality that are enshrined in the Indian constitution. And as many social media users point out, it is also almost cruelly ironic, given that marital rape is still legal in Indian law.
Invoking the Constitution's spirit of inclusiveness, Chief Justice Ajit Prakash Shah and Justice S. Muralidhar held that Section 377 of the Indian Penal Code, "insofar (as) it criminalizes consensual sexual acts of adults in private," violates the principles of equality and non-discrimination clauses of the Indian Constitution.
Article 14 of the Constitution guarantees all people "equality before the law," Article 15 prohibits discrimination "on grounds of religion, race, caste, sex or place of birth," and Article 21 guarantees "protection of life and personal liberty."
India’s attachment to a law made by the British Raj is embarrassingly antediluvian considering that Britain legalized homosexuality in 1967. In an unflattering description for a country that is trying hard to become a global power, the BBC called India “deeply conservative”.
The Guardian said the verdict smacks of “distinctly Victorian nastiness,:” charging that Indian lawmakers had the opportunity to be truly progressive while framing the constitution in 1950, soon after India threw off the yoke of colonial British rule, but chose instead to continue with “draconian statutes against “sedition” and “offending religious sensibilities”.
When Section 377 of the Indian Penal Code was repealed in 2009, it was hailed as a giant leap forward for AIDS prevention in a country with one of the highest HIV infection rates in the world.
Even so, homosexuality remains a deeply entrenched taboo. Those who are open about their sexual orientation and resist the pressure of traditional marriage, which is sacrosanct, are rare. Indeed the Supreme Court ruling puts India back in the company of the Islamic world and many backward African countries which criminalize homosexuality.
Given the charged political atmosphere ahead of elections in May, the government is unlikely to approach the issue immediately. It is also expected to refrain from entering into a confrontation with religious groups, a majority of which are strongly opposed to legalizing homosexuality.
Any move to amend Section 377 of the Indian Penal Code will likely face tough resistance in Parliament from some parties, and building a political consensus at this juncture will be a tough task.
“The legislation will take time since there is no consensus,” said Union home minister Sushil Kumar Shinde.
However, more than projecting India in a retrogressive light on world stage, the judgment, activists say, will pose a huge setback for the treatment of HIV/AIDS. The stigma associated with fighting HIV/AIDS was overcome thanks to the Delhi High Court judgment decriminalizing same-sex relations in 2009. But they have come to haunt the nation again with the Supreme Court's recent verdict.
"It will have a devastating impact on the country’s fight against HIV/AIDS,” said Prateek Behari, a gay rights activist and a volunteer with a health NGO. “The apex court's judgment will also fuel the discriminatory attitudes of healthcare professionals.”
Roughly 7 percent of India’s gays are HIV-infected, according to the central government. Their marginalization in health care was what led to the Public Interest Litigation filed by the Naz Foundation in the Delhi High Court.
The National AIDS Control Organization (NACO) acknowledged admitted in its affidavit that Section 377 acted as a "serious impediment" to successful public health interventions. "Those in the high risk group are mostly reluctant to reveal same-sex behavior due to fear of law enforcement agencies, keeping a large section invisible and unreachable and thereby pushing the cases of infection underground making it very difficult for public health workers to even access them," the NACO affidavit said.
Other collateral damage could be gays’ reluctance to approach healthcare systems for fear of being reported under Section 377. The judgment would make healthcare workers who work with LGBT communities vulnerable to police harassment.
A group of 20 doctors have filed an affidavit as part of the Naz Foundation case before the Supreme Court protesting against its verdict from a public health aspect. Untreated HIV means India’s AIDS epidemic continues to spread. Recent WHO data says that India has about 3 million HIV-infected people and the numbers are rising, a fact that the National AIDs Control Organization acknowledges as a “serious threat”.
Many are incredulous that government policy on keeping a killer ailment such as AIDS in check is based on moral and cultural judgment.
“How can you even think along these medieval lines?” asked Delhi-based Samantha Jones, who has been a part of almost all demonstrations supporting gay rights. “It is beyond ridiculous that such a dreaded ailment will fester because of eighteenth century mores.”
There’s one silver lining. From a fringe issue, India’s gay movement has become the subject of mainstream debate and mass support. Another surprising takeaway from the ruling was the unexpected show of solidarity from the Indian government. Rural Development Minister Jairam Ramesh said the ruling flew in the face of a “modern liberal India.” Perhaps there’s hope ahead for India’s beleaguered gay community. ‘Asia Sentinel’