From The Indian Express, Sat 21 December 2013

Curious Case

Utkarsh Anand : New Delhi, Sat Dec 21 2013

In its appeal filed on Friday, the government said, “Section 377 IPC, insofar as it criminalises consensual sexual acts in private, falls foul of the principles of equality and liberty enshrined in our Constitution.” PTI

In a curious submission, the government on Friday described its own law criminalising gay sex as “unlawful” and “unconstitutional”, and sought a review of the Supreme Court ruling that confirmed the legality of IPC Section 377.

Under Section 377, voluntary “carnal intercourse against the order of nature with any man, woman or animal” is punishable with imprisonment from 10 years to life. In an order passed on December 11, the Supreme Court said gay sex was an offence “irrespective of age and consent”.

In its appeal filed on Friday, the government said, “Section 377 IPC, insofar as it criminalises consensual sexual acts in private, falls foul of the principles of equality and liberty enshrined in our Constitution.”

It emphasised that the section reflected sodomy laws of the UK that have now lost legal sanctity, and were also “unlawful in view of the Constitutional mandate of Articles 14, 15 and 21 of the Constitution”.

Article 14 guarantees 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.

Seeking a hearing in open court, the government demanded a review of the December 11 judgment in order “to avoid grave miscarriage of justice” to thousands of lesbians, gays, bisexuals and transgenders (LGBT), who have been put at the risk of prosecution and harassment following the “re-criminalisation” of their sexual identities.

It said criminalising sexual expressions “strikes at the root of the dignity and self-worth” of the LGBT community, thousands of whose members had come out following the 2009 judgment of the Delhi High Court — but who had suddenly become “vulnerable to abuse and discrimination and require(d) immediate relief”.

On December 11, a Supreme Court bench led by Justice G S Singhvi held that Section 377 did “not suffer from any constitutional infirmity”, and that it was for Parliament “to consider the desirability and propriety of deleting (it) from the statute book or amend it”.

The ruling overturned the historic judgment delivered by the Delhi High Court, which had decriminalised gay sex, holding that Sec 377 violated the constitutionally guaranteed principles of equality and non-discrimination.

The review petition, drafted by advocates Devadatt Kamat and Anoopam N Prasad, has repeatedly reminded the court that nothing prevented it from striking down Sec 377, indicating the government’s uncertainty about being able to muster the numbers needed to change the law in Parliament.

It has recalled instances where the court has acted without waiting for Parliament, and asked why such a course was not adopted in this case despite the government having decided not to challenge the high court judgment. It has also said that there was no reason for the Supreme Court to presume the constitutionality of Sec 377, because the government, on whom lies the onus of defending the law, had chosen not to do so.

“Whether a law is Constitutional or not is certainly not dependent upon whether the legislature has thought it fit to retain a provision in the statute or not. It depends on whether that provision in effect violates the provisions of the Constitution,” it has said.

The government has argued that the apex court’s conclusion that it is not empowered to strike down a law merely because the perception of society has changed, was erroneous. “Law does not operate in a vacuum but in a social context,” the petition has said, adding that laws on homosexuality have been changed across the world.

The petition has argued that criminalisation of gay sex impedes access to health services and makes it difficult for the state to reach out to the community, which is driven underground for fear of the law.

On the Supreme Court’s observation that a “minuscule fraction of the country’s population constitute LGBT”, the government has argued that the number of affected people is irrelevant for deciding a matter of constitutionality.

GROUNDS OF APPEAL

SEC 377 is “unlawful” and “unconstitutional”, and “insofar as it criminalises consensual sexual acts in private, falls foul of the principles of equality and liberty enshrined in our Constitution”. It violates Articles 14, 15 and 21.

CRIMINALISING LGBT sexual identities “strikes at the root of the dignity and self-worth” of the community, and makes them “vulnerable to abuse and discrimination”.

NOTHING prevents court from striking down Sec 377; it has junked laws earlier, and “whether a law is constitutional or not is not dependent upon whether the legislature has thought it fit to retain a provision in the statute”.

MAKING gay sex criminal drives the community underground and impedes its access to health services. The numbers of LGBT are irrelevant for deciding a matter of constitutionality.

From The Hindu, December 16, 2o13

SIDDHARTH DUBE

Siddharth Dube writes of his experience of being gay in India, of how the country is now more accommodative of differences in sexual orientation than it was three decades ago, and why the Supreme Court judgment on Section 377 came as a major disappointment

Had the Supreme Court’s ruling reinstating Section 377 been delivered in 1986, the year I moved back to India after completing graduate studies in the United States, I would not have been surprised at all.

In that era, a quarter-century ago, as a 25-year-old trying nervously to make my way as a gay man, I had witnessed little else but homophobia. For gay men or women there were virtually no safe places in the world — where we were not criminalised, where we could live without fear, where we could hope to lead ordinary, full lives.

Even America was no haven. Just some months before I relocated, the U.S. Supreme Court ruled that sodomy laws were not unconstitutional — as a consequence, homosexuality remained a criminal offence in much of the U.S. until the court finally overturned that ruling in 2003.

My father had urged me not to return to India, apprehensive that my characteristic candour, including about my orientation in matters of the heart and desire, would lead to my being persecuted for being gay. I didn’t take his advice. I was aching to work back in my own country, on the issues of poverty and social justice, about which I felt passionately. And I thought I was aware of the difficulties I was likely to face.

But within months of moving to Delhi, I realised that my calculus had been naively optimistic. There was no escaping the burdens of secrecy and fear that came with being gay in India in that era, even for privileged gay men and women. The overwhelming majority desperately hid their orientation from almost everyone. Only the luckiest ones had been able to safely confide in close friends and relatives. Many had married despite being gay, in a desperate effort to keep their orientation from becoming known. The threat of exposure, blackmail and abuse by the police or thugs was an everyday reality because most gay men had no place to meet each other, or to have sex, beyond public parks and toilets, this being many years before gay groups and gay-friendly bars emerged in India. Over everything loomed the fear of being persecuted under Section 377 of the Indian Penal Code.

It was no doubt because of the constant stress that so few people were in relationships. And given the risks of being openly gay, there were still no prominent, outspoken gay Indians. Most of us did such a good job of hiding ourselves that we truly were invisible, individually and as a group. “The country’s most silent and secretive minority” was how we were described in a 1988 newspaper article.

I coped because I was young, because I loved my work, and because by a great stroke of luck I met a wonderful man with whom I began my first relationship. But once we began to live together in a rented flat in Jor Bagh, rather than at my family home, these myriad apprehensions intensified into a constant low-level fear, much like a chronic fever. My fear was always just this: Whether kissing, having sex, or just sleeping cuddled together, we were violating IPC Section 377 — even though we were in the privacy of our flat — and we could possibly be arrested and jailed as a consequence.

And then, less than a year after we had begun to live together, I found that my apprehensions were not misplaced. One night late in 1988, my boyfriend and I were arrested by the officer heading the Jor Bagh police station. The officer had called me earlier that day at my office at The Washington Post’s South Asia Bureau, saying he had received some complaints and I should come by the police station. I had foolishly agreed, assuming that as an accredited foreign correspondent I could handle whatever problems emerged. But within seconds of entering his office I realised I had made a terrible mistake. The officer looked at me with such loathing that I momentarily thought he must have mistaken me for someone else. He then erupted, the words burning themselves into my memory: “Mr. Dube, I know all about you. I have enough complaints about you. You are a homo! You have naked men dancing at your house, exposing themselves. Go back to America! You think you can live here but you’re wrong. If you want to live here, you will live as an Indian, not like an American!”

Breaking point

The most hellish hours of my life followed. My boyfriend and I were held under armed guard in one of the station’s offices. I was not allowed to use the station phone to call anyone. Most terrifyingly, my boyfriend, who was dependent on insulin to keep his diabetes in check, was not allowed to return to our nearby home to have the injection that he needed by early evening.

Hour after hour passed. My beloved boyfriend was increasingly in physical distress. But even so, the officer refused my entreaties to let him have his injection and return. Finally, close to midnight, by which time my boyfriend had passed out on the bench, he was taken to our flat under police escort. A phone call to my family had me freed within minutes.

That night was the breaking point. I resolved that my boyfriend and I had to leave India. I was sick of feeling fearful every day just because I lived with him, tired of feeling that I was a criminal for being gay. I knew that the only reason that things hadn’t ended disastrously at the police station was because the homophobic officer had held back because of my social status. From all that I had seen in my years back in India, I knew that if I had been just an average gay man, my boyfriend and I would probably have been beaten, raped, and then blackmailed, our lives ruined, with no scope for recourse because under the law we were criminals.

We left India as soon as we could. From then on, I returned for extended periods only to do field research for my books — I had no plans to stay and I left as soon as my work was completed.

It was nearly two decades later, in 2006, by which time I was middle-aged, that my fears about living in India finally ended. My friend Vikram Seth and I began an Open Letter campaign in support of the Naz India Foundation’s challenge to Section 377, which had languished for half a decade in the Delhi High Court. When the signatures of support poured in, I realised that the India of 2006 was not the India I had encountered in 1986. Then, I had feared that no one barring my family and close friends would help if I were persecuted.

Affirmations of support

But here were countless affirmations of support from eminent Indians from every walk of life — Swami Agnivesh, the legendary freedom fighter Captain Lakshmi Sehgal, former Attorney-General Soli Sorabjee, former chief of the Navy Admiral Ram Tahiliani, Doon School headmaster Kanti Bajpai, Planning Commission member Sayeeda Hameed, and stellar civil servants John Dayal, N.C. Saxena and J.B. D’Souza.

Amartya Sen joined us with a supporting Open Letter. He wrote: “It is surprising that Independent India has not yet been able to rescind the colonial era monstrosity in the shape of Section 377, dating from 1861… Today, 145 years later, we surely have urgent reason to abolish in India, with our commitment to democracy and human rights, the unfreedom of arbitrary and unjust criminalisation.”

The Open Letters marked a turning point in my fears about India — I knew I could return there as an openly gay man as India had changed so much, that I and other gay people now had a legion allies and defenders, right-minded people who understood that our cause was a basic human rights concern for equality and fair treatment.

The following year, I moved back to India. It was indeed an astonishingly different place where gay issues were concerned. The killing invisibility of the past had ended — the invisibility which meant both that we were too stigmatised to even be mentioned in the press or in society, as well as too fearful to draw public attention to ourselves. There were gay support groups and openly gay men and women, not just in the metropoles but in smaller towns too. Gay issues were discussed seriously in literature and the news.

Most astonishingly, I soon came to conclude that there was a remarkable level of acceptance of same-sex love amongst average Indians, far more than in sharply polarised America. Almost no one I met socially — even in small-town Nilgiris where I settled — or interviewed for a forthcoming book on sex work and homosexuality, expressed any homophobia. I was finding that the traditional tolerance and acceptance that Ruth Vanita, Saleem Kidwai and other scholars of Indian culture had pointed to was indeed true for many Indians. My orientation was inconsequential and irrelevant to them, rightly so.

And then, on the morning of July 2, 2009, what I and countless other gay Indians had yearned and fought for became reality: Justices Shah and Muralidhar of the Delhi High Court ruled that “Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14, and 15 of the Constitution.” They wrote: “The criminalisation of homosexuality condemns in perpetuity a sizeable section of society and forces them to live their lives in the shadow of harassment, exploitation, humiliation, cruel and degrading treatment at the hands of the law enforcement machinery…. This vast majority… is denied moral full citizenship.’”

Free at last…

I was free at last. I was no longer presumptively a criminal in my own country.

The source of my sharpest and most-abiding adult fears had been destroyed with this wonderful judgment. I was proud to be Indian. I was happy to be living in India. I even began to dream that one day soon I would have equal rights to other Indians, the trajectory in so many other societies by now.

My beloved father, ailing from cancer, told me he could pass away peacefully now that he knew he no longer had to fear for me because of this hateful law, as he had when I first returned to India a quarter century earlier.

So for me, the Supreme Court’s ruling is not just baffling, it is a tragedy of epic proportions. Welcomed only by irrational conservatives and the lunatic fringe, it goes against everything that so many Indians, whatever their personal orientation, have fought for over the past several decades. It goes against the wonderful quality of acceptance that is indisputably part of our cultural fabric.

It goes against the tide of recent history. It goes against every measure of justice. It must be reversed. It will be reversed. This is India after all, not Putin’s Russia or the Ayatollahs’ Iran.