indian lgbt groups celebrate breakthrough against colonial ‘unnatural sex' law
The long struggle for LGBT equality in India took another small step forward today, though past experience has deterred India’s queer community from celebrating prematurely.
Cheering campaigners gathered outside the Indian Supreme Court today, defiantly singing "we will be successful" in celebration of the courts decision to reconsider a colonial-era law that is used to discriminate against gay people. The court has agreed to revisit a previous judgement that refused to strike down Section 377 of the Indian Penal Code -- the banning of "carnal intercourse against the order of nature with any man, woman or animal" -- a throwback to the 1860s, when the British Empire reigned supreme.
While rarely enforced day-to-day, campaigners say it's regularly used to intimidate, harass, blackmail and extort money from gay people. It's also almost impossible to account for the law's contribution to societal homophobia. When homosexuality is outlawed, it normalises hatred, shaming and abuse.
"This isn't a law against homosexuality," Harish Iyer, an Indian LGBT activist, explains from Mumbai. "It's never been illegal in this country. What is outlawed is unnatural sex, and this is open to interpretation." Harish has been vocal in campaigning for the end of Section 377, earning him a spot in the Guardian's 2013 list of most influential LGBT people worldwide. "Any sex not in the vagina is seen as unnatural sex, and this was something that came with the British, thank you so much for that!" he laughs.
Back in 2009, what appeared to be the end of an eight-year legal battle marked a breakthrough for the rights of queer Indians. The Naz Foundation, an NGO that works in India on HIV/Aids and sexual health, together with the activist group Voices Against 377, took a case to the Delhi High Court, arguing that the criminalisation of gay sex among two consenting adults violated Indian citizens' fundamental rights. It was a long and drawn out process, but the judges found in their favour. Now the court will hear from all the parties again, before finally coming to a conclusion.
"It cannot be forgotten that discrimination is the antithesis of equality and that it is the recognition of equality which will foster dignity of every individual," found the 105 page long judgement, read in a silent courtroom. There was only a short period of respite and celebration, because in 2013 the Indian Supreme Court reinstated the ban, citing constitutional conventions that dictate changes to the law should come from politicians rather than through the courts. For many it like a painful regression. Today's ruling will see the case considered again.
It's not as if activists haven't tried changing the law through politicians. Indian MP Shashi Tharoor attempted to introduce a bill through Parliament to repeal the discriminatory legislation, but he was unsuccessful, meaning engaging in same sex relationships is still punishable by up to 10 years in prison.
But Harish is undeterred by these critics, saying that the case is with the judiciary now - it's the way the constitution works. "Our views are based on the constitution of the country, which grant every individual their rights and equality," explains Harish. "This case is once again starting a much-needed conversation here about LGBT rights."
There's no predicting what the outcome of this next case will be, and yet Harish doesn't seem hugely concerned. "I feel that cases aren't won in courtrooms or parliament, but at dinner tables and in offices, on the streets and in our hearts." Harish makes clear that whether or not India retains section 377 in the future, acceptance will "definitely take time".
"More and more people in a position to come out must do so, and they will set a path for others to do the same," he suggests, pointing to the need for a concerted effort to improve education, perceptions in popular culture, and support services available nationwide.
He speaks of the relative simplicity of being gay in a metropolis like Mumbai, where he lives, where the struggles faced by the community are similar to those of LGBT people in places like the UK. "It's normal for people to be out, and you know, it's not so dreadful," he says, "but in many places life is hard, people look to expose you if you're still in the closet, there's a lot of stigma and fear attached to coming out." Suicide, he says, is all too commonplace. "There's a lot of work to do," he continues, "but if the law does change, it could be a catalyst for changing our society."
Text Michael Segalov