It is disappointing that four years after the Delhi High Court passed its landmark judgment decriminalising homosexuality, the Supreme Court has turned the clock back on Wednesday. The irony that consensual sex between two adults was denied to the LGBT community on Human Rights’ Day was not lost on activists. With this re-criminalising of homosexuality, the Supreme Court has set the gay rights movement in India back by at least a couple of decades.

The Delhi High Court order passed by Justice A. P. Shah in July 2009 had both legal and societal significance. It was generous and marked by a deep understanding of what the Constitution would decree in the context.

Consequently, from a social point of view, in the last four years, there has been a loosening of attitudes towards homosexuality in Indian society. With the backing of a court order, we were beginning to see around us, a general sense of acceptance of sexual difference and the premise that what two consenting adults partake of in private was not for society to judge.

This then becomes not just a long legal road backwards, but also a reversal of societal acceptance. I must strongly emphasise here that I have so far never been the victim of any discrimination in the workplace in India on the basis of my sexual orientation. But this is partly a reflection of the social class to which I belong.

Serious impact However, I am sure that the implications of the Supreme Court’s order are serious for young people from the lower middle class. In the past, the police have been known to extort money just for the fact that one was gay.

Gay men were prevented from meeting in public while lesbians have been known to be forcibly separated by their families and neighbours. The Court’s order now brings these realities back to the LGBT community in the country.

After four years of being out of it, India now rejoins a dwindling list of about 70 countries worldwide where homosexuality continues to be treated as a criminal offence. The more disappointing part of this, though, is that even though enlightened public opinion is mostly accepting of homosexuals, the Court by its ruling has given the upper hand to religious bigots.

These groups, especially those allegedly representing minorities, should be forced to face the inconsistency in their stance when they support the continuation of Section 377. The LGBT community is also a minority.

But the most outrageous part is the castigation of gay rights as being against Indian culture. As evident from art and literature, India has by now had a long history of accepting homosexuality. It was under colonial rule in 1861 that Section 377 was imposed. As far as the penal code of a free country is concerned, it can only be based on constitutional morality.

This was pointed out by B. R. Ambedkar many decades ago, and was also the argument used by Justice Shah in his ruling of 2009.

Violating rights The Supreme Court ruling should also be seen in relation to the United States Supreme Court’s order in June this year. It had declared the Defence of Marriage Act, the law which barred the federal government from recognising same sex marriages, as unconstitutional. “By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment,” the US court has ruled.

Similarly, by not allowing homosexuals the same right to consensual sex between adults, India’s Supreme Court is violating the right to freedom of liberty and equality guaranteed by our Constitution.

I am hopeful that eventually Parliament will take this up. But the process will not be easy. Even though early pronouncements by certain politicians are encouraging, a large number of members of Parliament are likely to be unsympathetic to the interests of a non-vote bank minority. Soon after the order on Tuesday, a prominent ex-parliamentarian called for governments and corporates to fund research that would find a cure for homosexuality at the earliest. “It is a malady that should not be celebrated but cured with compassion,” he said.

While this sentiment is touching, it may be noted that it is over five decades since the American Psychiatric Association removed homosexuality from its list of disorders. India’s gay citizens expect greater historical perspective if not downright intelligence from those aspiring to lead them.

(As told to Veena Venugopal)

(The author is Director, Centre for Development Studies, Thiruvananthapuram.)

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