When the Supreme Court recriminalised homosexual activity between consenting adults.

Moving ahead of Dec 11 The day India disappointed the gay community Image Courtesy: Getty Images
Blog Sexuality Sunday, December 11, 2016 - 15:35

In 1992, AIDS Bhedbhav Virodhi Andolan (ABVA) petitioned to the Petitions Committee of parliament and sought decriminalisation of homosexuality by repealing Section 377 of the Indian Penal Code. ABVA was an organisation that fought against AIDS related human rights issues. In April 1994, ABVA filed a petition in the Delhi High Court challenging Section 377’s validity.

This was when the Tihar jail authorities refused to supply condoms to inmates despite the known prevalence of homosexual activity between the inmates and risk of exposure to HIV infection. 

Years later, in 2001, NAZ Foundation (India) Trust filed a public interest litigation in the Delhi High Court against Section 377. In 2003 the Delhi High Court refused to consider the petition and dismissed the subsequent review petition by NAZ saying that they did not have authority or say in the matter.

Naz Foundation appealed in the Supreme Court to review the decision and the petition was sent back to the Delhi High Court to consider it on merit.

On 2nd July 2009, the Delhi High Court passed a judgement that overturned Section 377 and decriminalised homosexual activity between consenting adults in the Naz Foundation vs Government of NCT of Delhi petition. The court spoke of inclusiveness and equality in its judgement. It was celebrated across the country by the gay community.

The celebration ceased when the Supreme Court scrapped the Delhi High Court Judgement on 11 Dec 2013. 

Close to 2009 the public visibility of the gay community grew. It could be mainly because before that there was only limited space that included individuals who did not associate with any NGO. And the social spaces were accessible only to certain demographics.

But one cannot deny that the networking, efforts and the work various individuals and groups in the past decades is what enables us to continue today. Post the Delhi High Court judgement, there was a noticeable shift in this. Gay men started to identify in public and individual representations got attention. Eventually Pride parades had considerable amount of visible cis-men representation. It was also partly true that the entire LGBT movement that we call today piggy backed on the working-class transwomen and men-who-have-sex-with-men (MSM) community. 

When the Supreme Court recriminalised homosexual activity between consenting adults, there was a huge outpour of gay men in the immediate days. Probably that was the first time there was a massive co-ordinated protest across India. The Global Day of Rage was observed on the 15th December 2013 in 18 cities in India and in few cities outside the country. In the subsequent years, the intensity of these protests dwindled. 

One of the major criticism against the LGBT community is that there isn’t a ‘proper’ people’s movement. While this might be true; we cannot club the LGBT spectrum together when it comes to lobbying and engaging with the policy makers. There is a lot that we – the gay community – must learn from the transwomen community who actively engage with the government, legal and the law enforcement.

We must also be clear that the initial legal battle against Section 377 did not intend to champion gay rights. While Section 377 is not specific to homosexual individuals alone, over the time it has become the centre point of discussion when we talk gay rights. It is agreed that any sort of anti-discrimination policy might sound ambitious when we have Section 377 for consenting adults. But passing on the burden only to homosexual community is unfair.

In September 2014, India abstained from voting on a resolution against LGBT discrimination in UNGA. In July 2016, India again abstained from voting on a resolution in UNHCR to set up Independent expert to end discrimination against LGBT individuals. In November 2016, The African group tabled a resolution questioning the legal basis of the mandate passed to set up an Independent expert. India once again abstained from voting in this resolution.

While there are individuals and groups engaged with law makers, there seems to be less interest/awareness among the wider gay community to pressure the government. Likewise, the recent Surrogacy (Regulation) Bill, 2016 specifically excludes homosexual couples from having children through surrogacy.

Same-sex unions are not recognised in India. The exclusion of homosexual couples are directed at individuals who come from countries that recognise same-sex unions. But this needs to be taken seriously because this exclusion might soon be directed at the gay community in India through other policies. This is also a leap for a government which was silent in every issue pertaining to the gay community but identifies homosexual individuals as a demography that must be excluded.

We need strong voices to counter such systemic discrimination. The gay community must come together to discuss and demand broader civil rights like anti-discrimination policy at work, educational institutions, hospitals and elsewhere and build momentum.