On 11 December 2013, the streets outside the Supreme Court of India thronged with a dazed crowd, hugging, sobbing and not quite sure what had happened. Inside the hushed courtroom, the judges had just passed a devastating ruling. Lesbians, gays, bisexual and transgender (LGBT) people in India had once again been labelled criminals. Section 377, the 152-year-old colonial law that banned gay sex, had been upheld by the Highest Court of Law of India saying that amending or repealing Section 377 should be a matter left to Parliament, not the judiciary.
For gay and lesbian Indians, the Supreme Court verdict means that they become vulnerable to harassment all over again. In India, domestic partnership and adoption—things that straight people take for granted—cannot even be discussed by activists because Section 377 makes it illegal to engage in gay sex. Under the colonial law, men could be jailed for 10 years for having sex with men, an act which was classed as an ‘unnatural offence’ along with paedophilia and bestiality. How can one talk about rights when the legal framework makes you a criminal?
In 2001, on behalf of the Naz Foundation (India) Trust and with the help of the NGO Lawyers Collective, I began to put together the public interest litigation against Section 377. Apart from just coming out and shouting from the rooftops about our human rights, trying to change the law was the only thing we could do. The everyday harassment of gay men by police and thugs also strengthened my resolve to fight for this cause. Although gay men are rarely prosecuted under Section 377, they are often intimidated or exploited because of it.
Once, while I was coordinating the Naz Foundation’s programme for men who have sex with men’ (MSM), a whole group of our clients were badly beaten up. They were walking home from a support meeting when they were attacked by some street boys with iron bars and hockey sticks. Many of them got their heads smashed that night and had to be taken to the hospital. We knew who did it. I wanted to make a police complaint but we could not because of the law. The police had a history of raiding groups who worked with gay men and of rounding up and arresting outreach workers. We were afraid. The men who were beaten up were also afraid to speak out. They were not ready to own up to being gay publicly; they thought they would be criminalised. In the end we made no complaint.
I had begun my journey to becoming a gay rights activist when, as an 11-year-old schoolboy in Delhi, I realised I was attracted to men. I grew up surrounded by a ‘conspiracy of silence’, in which nobody even spoke of the possibility of homosexuality. I would have been happy to hear something I could latch onto or fight with, but there was just silence—a mind-numbing and suffocating silence. There was this hypocrisy—it’s okay to do what you want to do in the bedroom but you do not talk about it in the living room. I found this appalling.
I got into gay activism in my early twenties. I realized that voicing my feelings openly began to heal the years of silence and oppression that I had faced as a gay boy growing up. But before I could go public, I had to tell my mother. After having kept my sexuality secret from family and friends for a decade I came out to my mum, whose matter of fact reply was such a delightful relief for me. She said simply, “So what?”
Most gay Indians do not have the privilege of being born to such liberal parents. After confiding in my family, I began working with gay organisations, starting with the Humsafar Trust in Mumbai and then Naz in Delhi. I became an open gay rights activist. I wrote a magazine column. I did training workshops and seminars. I was vociferous in the media. I organised protests and did work with the National Human Rights Commission on the psychiatric mistreatment of homosexual patients by the medical fraternity.
Gay men are more than fifteen times more likely to contract HIV than the average Indian, and many groups lobbied for Section 377 to be overturned on the grounds that it pushes gay men underground, increasing vulnerability to HIV. The National AIDS Control Organisation (NACO), the governmental leading the response to the epidemic in India, came out against Section 377 in 2006, arguing that the law made HIV prevention more difficult. The then Health Minister of India Shri Anbumani Ramadoss and many AIDS organisations, including the India HIV/AIDS Alliance where I now work as a Director, also called for the law to be abolished in order to protect public health. Our consistent efforts did lead to a sweet victory (now turned sour) when Section 377’s criminalisation of consensual sex between adults was declared unconstitutional by the Delhi High Court in July 2009. Constitutional morality had prevailed upon public morality, but this victory was short-lived.
The 2009 ruling had a huge impact, opening the floodgates of demand for social acceptance by LGBT people. Cities including Delhi and Mumbai have held gay pride marches; young gay people and their families are being interviewed by journalists on primetime television; Bollywood films now have gay characters. Bombay Dost, a gay magazine, has been re-launched and is no longer sold furtively wrapped in brown paper. This cultural shift gave us some degree of comfort to believe that the general population was ready for real social change. But there was plenty of opposition too. Religious groups, leaders of the BJP (the Hindu nationalist party), and hundreds of millions of ordinary Indians, especially those in rural areas, still find homosexuality unacceptable.
This social discrimination will be much harder to change now that the law again upholds it instead of denigrating it. In small towns of India, it is still not easy for people to reveal their sexual orientation to their family. Even in Delhi, young gay men need guidance and support to come out. Gay men succumb to the social pressure around them and keep their sexuality secret. When I was in my late teens I asked a man I met at a cruising spot whether he would ever get married (to a woman). “I already am,” he replied, “Isn’t everyone?”
But despite these challenges, things can improve if we choose to believe in ourselves. When I chose to come out and start working as a gay rights activist, I used the very stigma which tried to oppress gay men as a weapon to create my own life of freedom and help others along the way. Today I am not only a political activist working on sexuality issues but also a writer on the subject. My sexuality, a source of anxiety in my early years, has defined, quite successfully, who I am and what I have chosen to do with my life.
And even as I write this, the Government of India has appealed to the apex court seeking a review of its judgment on Section 377, saying that ruling falls foul of the principles of equality and liberty. Let us hope that all our rights will once again be preserved.
The author of this post, Shaleen Rakesh, serves as Director of Technical Support at India HIV/AIDS Alliance. He initiated the fight against Section 377 of Indian Penal Code while on staff at the Naz Foundation (India) Trust in 2001. A collection of his poems,The Lion and The Antler, was recently published.
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