India has a relatively stable democracy. Elections in the last two decades have brought one of two political coalitions to power. These two groups are namely the National Democratic Alliance (NDA), headed by the right wing nationalist party the BJP, and the United Progressive Alliance (UPA), led by the left-of-center nominally secular Indian National Congress (INC).
The key difference between the two groups is that the BJP endorses a fundamentalist politics with a clear Hindu majoritarian bias. They have a dubious human rights record. They were responsible in 1991 for the destruction of a 14 century mosque in central India in collusion of the state government, which was controlled by the party at the time. This led to communal riots and violence across the country with thousands of lives being lost. Again in 2002, when the party controlled both the center and the state government in Gujarat sate, they organised a pogrom and systematic genocide against the Muslim community of the state with more than 3000 lives being lost and millions of rupees worth of property belonging to Muslims being destroyed.
However, in all fairness it needs to be mentioned that the record of the UPA in matters of communal relations between communities is not rosy either. After the assassination of the then Congress Prime Minister Indira Gandhi by her Sikh Bodyguards in 1984, Congress leaders led a pogrom against the Sikh community in Delhi, where more than 2000 sikhs were brutally killed, many by placing petrol soaked tyres around them and putting these on fire. Many Congress governments since then have stalled any proper investigation into these riots, and with the passage of time, and the disappearance, death, or intimidation of witnesses, any scope of the perpetrators being brought to justice has receded to a near possibility. In fact more Hindu-Muslim riots have taken place under Congress dispensations than under BJP. The only thing that can be said in favour is that at least overtly the Congress pays lip service to secularism and communal amity.
It is important to note that the BJP and/or the NDA has been in opposition to any change of the sodomy law and have
consistently justified their opposition (including under oath in an affidavit before the Delhi High Court) on the grounds that homosexuality is against Indian culture and values. Organised reprisals and pogroms against LGBT activists have also happened under BJP rule, most notably in the Lucknow arrests of 2001 where the MSM/HIV NGOs Bharosa Trust and NFI were raided and locked down, while their workers were arrested and charged with the conspiracy to spread the sodomy offence under Section 377 of the Indian Penal Code. A faction within the NDA, the Shiv Sena, were responsible for the vandalism against cinema halls screening a movie called ‘Fire’ that depicted a lesbian relationship, calling it against Indian cultural values.
The UPA, led by the INC by contrast is at least nominally committed to a secular politics with no overt discrimination on the basis of religion. They however are often bogged down by the imperatives of coalition politics, which blemishes their record on LGBT rights. This became most visibly obvious when they opposed the challenge to the sodomy law before the Delhi High Court by borrowing the same arguments that the BJP had used and amplifying it with false and untenable postulates, including false claims on culture, religion, and even claiming that legalizing homosexuality would actually increase the prevalence of HIV in the country, a claim in direct contrast to the prevalent scientific understanding of HIV prevention internationally. This happened in spite of the prime minister and the health minister making public statements in support of decriminalisation and even attempting to get the various ministries to resolve the issue before the court proceedings could take place.
It needs to be mentioned here that their stand exposed them to severe and scathing criticism from the civil society in India, the press, the international human rights movement, and finally by the court. This forced a rethinking on the issue within the government and they have now decided that they will not oppose the challenge to the judgment of the Delhi High Court that is pending before the Supreme Court of India.
We therefore find that there is a direct connection between the discrimination, criminalisation and stigmatization of LGBT and the ascendancy of the right wing in politics. The right wing continues to target all non-normative sexuality as being against Indian culture.
In the above background homosexuality continues to be debated in India pivoted around the archaic Section 377 of the Indian Penal Code, which criminalised sodomy and by extension made all same sex relations viewed through the prism of illegality.
India has a robust and effective LGBT activist movement, and a largely supportive civil society and mass media that supports LGBT rights. Activism by a number of groups has succeeded in documenting the history of violence against LGBTs, either caused due to Section-377 or justified on account of it. Section 377 has been used directly by the state to target sexuality minorities and sexuality minority activism, including in the Lucknow arrests mentioned above. However the movement has been effective in countering most of the state sponsored attacks on it and were successful in bringing about a challenge to the section 377 before the Delhi High Court, which is discussed hereafter.
“AIDS Bhedbhav Virodhi Andolan” (ABVA), a human rights group, instituted the first Challenge to the Constitutionality of Sec 377 in the Delhi High Court in 1994. Their petition argued that the section violated Articles 14-15 (right to protection against discrimination), Article 19 (right to freedom of speech and expression), and Article 21 (right to life and liberty, which encompasses the right to privacy) of the Constitution of India. This petition was filed in the wake of a report by a medical team that had visited Tihar Jail in Delhi and reported a high incidence of sodomy in the male wards. As there was a risk of HIV infection being transmitted to the jail inmates, the team recommended making provisions for condoms in the jail (as recommended by WHO guidelines). The jail authorities refused to do so because they felt that it would both encourage male sexual activity in prisons (which would amount to encouraging an offence under Section 377 and to a tacit admission that homosexual behavior exists in prisons.[1]). Unfortunately, the petitioner group ceased to exist and the petition never came up for hearing.
It was only in 2001 that this legal strategy was revived as the Naz Foundation (India) Trust, a NGO working with HIV/ AIDS related issues approached the Delhi High Court to read down Section 377 so as to remove all consensual sexual activities between adults if done in private from the ambit of the provision.[2] By reading down, what was meant was that the petition instead of asking for a repeal of Sec 377, preferred to ask that the statue be interpreted such that, consensual homosexual acts in private be removed from its criminalising ambit. In the absence of any laws against male rape or male child sexual abuse, it was felt imprudent to ask for a complete repeal of Section 377.
The Naz petition articulated that Section 377 posed a major impediment to carrying out HIV/AIDS related work with the MSM community, as it drives high-risk behaviors in terms of unprotected oral and anal sex underground and beyond the reach of safe sex interventions. It further stated that Section 377 violates the fundamental right to privacy and equality. In effect, this petition asked for all consensual sexual intercourse between adults to be removed from the criminalizing force of Section 377, provided these sexual acts were done in private.
Whereas the premise of the petition was the protection of health of MSM and was in consonance with the policies of the National AIDS Control Organisation (NACO), the Government of India’s response to the Naz petition shifted the terms of debate. The Government’s affidavit in response to the petition brought the issue of cultural values into the debate and claimed that “— deletion of the said section can well open flood gates of delinquent behavior and be misconstrued as providing unbridled license to the same.”
While refuting the claim that Section 377 violated the right to life, the right to equality, or the right to freedom of speech and expression, the government’s reply disingenuously made the case that Section 377 was applied to cases of child sexual abuse and rape of women and that it therefore actually fulfilled the constitutional mandate to protect women and children. It went on to observe, “While the Government cannot police morality, in a civil society criminal law has to express and reflect public morality and concerns about harm to the society at large.”[3]This response essentially buried any hope that Section 377 could be read down with Governmental cooperation and exposed the government’s virulent homophobia and an unwillingness to provide any space for emerging LGBT expression.
This response by the state should be seen as being a part and parcel of the Hindu right’s political-ideological compact of exploiting public sentiments for political gains by demonizing and stigmatising difference from the mainstream Hindu majority. It therefore actively goes looking for difference to target. While Muslims have traditionally been the target, the claim to rights as articulated by the LGBT people in challenging Section 377 gave a perfect opportunity to the right wing to create another demon to target and victimize for populist political gains. The Affidavit was an ideological continuity of this proclivity, construing Section 377 not from a perspective based on health, but rather from concern of maintaining the cultural and moral purity of a Hindu nation. The government reply noted, “objectively speaking there is no such tolerance to practice of homosexuality/lesbianism in the Indian society.”
In other words the government neglected the health premise on which the petition was based and deliberately introduced the notion of lesbian and homosexual identities in the debate and claimed the same to be alien to Indian values. This necessitated civil society and queer activists to actively contest the polarizing and violence ridden socio-political context of the government, since a successful challenge to Section 377 would first need to confront the logic of the Hindu Right. In this context a coalition of civil society groups, including some queer groups came together to form the ‘Voices Against 377” which intervened in the court and claimed a reading down of 377 not on health grounds but as an entitlement under the protection of fundamental rights guaranteed under the constitution to every citizen including LGBT citizens. In effect the politics of identity, introduced as way of ‘othering’ LGBT to facilitate targeting and stigmatizing them, as introduced by the government became the catalyst to claim LGBT identity based political rights.
When the NDA/BJP dispensation lost the 2004 election and the UPA/INC came to power, it elicited a hope that the polarizing and divisive politics of the past would be changed. However this hope was belied when the new government filed its response to the Sec 377 affidavit, and merely followed the lead of the BJP government in opposing its repeal. The overt homophobia of the BJP government affidavit was replaced by the subtle homophobia of the new dispensation.
This led to a realization that the state and its various institutions have internalized a heterosexist bias to an extent where to expect a positive judgment from the court might be a serious error of strategy. What was clearly required was to move from a narrow legal demand and build a political struggle that took on board the concerns of the LGBT community, of HIV/AIDS activists, and of all those committed to safeguarding the pluralistic ethos of the Indian constitution. While activism for LGBT rights had a long history going back a decade and more, it was clear that those efforts were not sufficient to generate the kind of momentum which could achieve a change of mindset in the polity at large. An intensified effort where all actors in favour of LGBT rights and fundamental values of the constitution had to work in concert, was required to achieve this.
This led to heightened activist efforts to build a favorable momentum in favor of decriminalisation amongst large sections of civil society, to more visible public activities by LGBT groups, including organizing prides, and specifically targeting the media for favourable reportage in favor of decriminalisation and in support of LGBT rights.
The strategic use of mediums like the Internet to coordinate advocacy and campaigning was put in place. Arguments based on sheer bigotry had to be countered by coherent policy arguments to convince stakeholders that decriminalization was necessary. The Lawyers Collective (Lawyers to the Petitioner Naz) organized seminars throughout India and discussed the issues with a wide range of community stakeholders. It was important to communicate the key messages to the broader community, including community leaders and the health and welfare sector. Much work was done by a range of NGOs that were supportive of the case to sensitise the media to the public health and human rights policy arguments.
In 2009, the Delhi High Court pronounced its judgment in the Naz Foundation Case, and decriminalized sex between consenting adult males in private. The judges held that “the criminalisation of homosexuality condemns in perpetuity a sizable 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”.
Further, in assessing whether application of Section 377 to criminalize consensual sex between adults is consistent with the Indian
Constitution, the judges referred to international law. Regard was given to Article 12 of the Universal Declaration of Human Rights which states, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation”, and Article 12 of the International Covenant on Economic, Social and Cultural Rights, which requires states “to fulfill everyone’s right to the highest attainable standard of health.” The court accepted the argument that criminalization is harmful to HIV responses. The Court concluded that to stigmatize or to criminalize people on account of their sexual orientation is against constitutional morality and principles of inclusiveness in the Indian Constitution. It declared that criminalization of male-to-male sex between adults is in breach of the Article 21 of the Indian Constitution, which provides that no person shall be deprived of his life or personal liberty except according to procedure established by law.
Further the Court stated: “The sphere of privacy allows persons to develop human relations without interference from the outside community or from the State. The exercise of autonomy enables an individual to attain fulfillment, grow in self-esteem, build relationships of his or her choice and fulfill all legitimate goals that he or she may set. In the Indian Constitution, the right to live with dignity and the right of privacy both are recognized as dimensions of Article 21. Section 377 IPC denies a person’s dignity and criminalises his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution. As it stands, Section 377 IPC denies a gay person a right to full personhood, which is implicit in the notion of life under Article 21 of the Constitution.” The Court also held that criminalisation of male-to-male sex under Section 377 violated Article 14 (equality before the law) and Article 15 (prohibiting discrimination on the grounds of sex).
By virtue of the principle laid down by the Supreme Court that if a High Court found any statute to be in violation of the constitution, then the judgment became applicable across the whole of India, decriminalisation is effective and in force across India. The Supreme Court has admitted several appeals filed by religious groups against the Delhi High Court judgment. The government, as already mentioned above, has not lodged an appeal. In response to the appeals by the religious bodies, several civil society bodies and individuals have also lodged appeals in support of the Delhi High Court Judgment.
The Naz Foundation Case provides an example of strategic litigation accompanied by a broader campaign to mobilize the community regarding the human rights and public health arguments, for creating a case for decriminalization. An alliance of civil society, LGBT groups, and a supportive press can affect significant change in attitude to make decriminalisation acceptable and possible.
Although decriminalization of homosexuality in Delhi in 2009 was an important step forward for HIV prevention and the human rights of LGBT, there is a risk of punitive police practices continuing in India if measures are not taken to change community attitudes, educate police, and implement policies that require supportive and ethical policing. Police conduct in enforcing sex work offences remains a major issue. In India, the Immoral Traffic (Prevention) Act 1986 criminalizes soliciting, running a brothel, living on the earnings of sex work, procuring a person for sex work, and sex work in the vicinity of a public place. Male and transgender sex workers in India have reportedly been targeted for harassment by police and prosecution under the Immoral Traffic (Prevention) Act 1986 and state summary offences legislation.