With the German Bundestag voting to legalise gay marriage, the question has naturally arisen: “What is India doing about section 377?” This section of the Indian Penal Code (IPC) criminalises penetrative penile-non vaginal sexual acts.
After the great victory in the Delhi High Court in the Naz case, the LGBTI (Lesbian Gay Bisexual Transgender Intersex) communities had to face defeat in the Supreme Court in the Koushal case. The Review Petitions against it were dismissed. Fortunately, in the Curative Petitions filed after that, the Supreme Court has directed that a Constitutional Bench will hear them. When they will be heard is anybody’s guess. However, the curative petitions are a window of opportunity for the LGBTI communities. The question is still wide open as far as the Supreme Court is concerned.
Koushal obviously had negative repercussions. Community activists went through a period of demoralisation. Cases of blackmail and extortion have spiked and access to justice thwarted. The defeat in Koushal has, however, not killed the spirit of the LGBT community in India. While everyone thought that gay persons would return to the closet, it simply has not happened. Those who are out have stayed out. To be sure, the new younger crop of LGBTI persons find the environment more constricting than the one that operated from Naz to Koushal. But, one sees many more, younger, people eager to take up the baton for the rights of the LGBTI communities. This is a big victory in itself. The media is also fully on board. Finally, I would submit that the vast majority of ordinary people are also with us. Yes, the bill of Shashi Tharoor, the Congress MP in the Lok Sabha, to delete Section 377 from Indian law was stymied. The BJP MPs organised to ensure its defeat. So the Parliament route is closed for the moment. It is arguable whether Tharoor had mobilised enough support to put the Bill to the House.
Where does it leave the LGBTI movement on Section 377? While the developed world has made very quick strides from decriminalising gay relationships to legalising gay marriages, India is still stuck with whether to get rid of Section 377.
The communities have to continue their advocacy at all levels, at the central and the state levels. Even though BJP MPs were instrumental in defeating Tharoor’s bill, one has to still engage with them. My understanding is that there are strong voices within the BJP who favour deletion of Section 377. So the effort for advocacy at the legislative level must be ongoing. In this respect, a window of opportunity has been provided with the National Legal Services Authority (NALSA) judgement on transgender rights. Firstly, it has allowed an opportunity for debate amongst legislators in Parliament on the issue of transgender rights, which is intimately connected with 377.
Secondly, the spirit and the logic of the NALSA judgement are completely antithetical to the Koushal judgement. At the time of the final hearing of the curative petitions, this will give ammunition to the lawyers of the LGBTI communities. Now is the time not to give in to despondency and lose hope. Now is the time to regain one’s strength and regroup. In the quietus that exists today, work has to be done systematically to change the thinking of society. Debates should continue at the community level on how to achieve this so that the onward march of liberation from the yoke of colonialism in the form of 377 is overthrown once and for all. Sooner or later, this wall will fall. It is only a matter of time.
(Anand Grover is a senior lawyer and human rights activist known for his legal activism in Indian law relating to homosexuality and HIV. He is also one of the founder-members of the Lawyers Collective.)...