Danish Sheikh’s life has mirrored India’s tortuous relationship with gay rights. In 2011, when he was a young lawyer, he held a placard at the Bangalore Pride March that read: “Elizabeth Taylor had eight husbands. I just want one.” That lightheartedness was part of the spirit of a happier time.
In 2009, the Delhi High Court partly struck down Section 377 of the Indian Penal Code — a colonial law from 1860 that criminalised homosexuality, alongside bestiality, as being “against the order of nature.” A coalition of religious groups appealed, and the case went to the Supreme Court. Sheikh, now working full time on the case for the Alternative Law Forum, an advocacy group, came out to his Muslim parents a week before hearings began in 2012.
“We’d literally do the arguments in the courtroom and I’d come back to the chambers, and have those arguments with my parents on the phone,” Sheikh told me recently over a glass of red wine at a bar in central Delhi. “It was like the personal and the legal all meshing into each other.”
One weekend, as a team of mental health professionals supplied briefs to the Supreme Court assuring them that homosexuality is a natural and normal variant of human sexuality, Sheikh found himself in a psychiatrist’s office. His parents, who lived in a town in central India, had driven him there directly from the airport. “Do you know why you’re here?” the psychiatrist asked. “No,” Sheikh replied. “I have no idea. Tell me why I’m here.” The doctor explained: because you are a homosexual. Then he gave a range of reasons – from hormonal imbalances to tumors in the hypothalamus – as to why this might be so.
Sheikh, his head full of testimonies from credible medical professionals, told the quack he had been recording their conversation, and threatened to sue him for malpractice. At that, the doctor informed Sheikh’s parents that their son was probably a schizophrenic. That night the Sheikh family had their biggest fight on record. But it was cathartic. “After that, things got a lot easier,” Sheikh said.
The family had barely turned a corner when, in December 2013, the SC overturned the previous ruling on Section 377 on the ground that the law criminalises acts against the order of nature, but does not persecute specific groups.
What the court did not recognise was that those acts are associated with specific groups who have been targeted by the law. Writer Vikram Seth spoke for many when he said it was “a bad day for love and law.” Sheikh was in Michigan at the time. He sobbed as he watched TV reports on the ruling. “The sense of loss was visceral,” he told me. “It was as if something very important had been snatched away.” His parents called to ask if he was OK. “Why shouldn’t I be OK?” he replied. They told him they were concerned about the Michigan cold, but, he said, “They were obviously concerned about the impact of the law on me.”
Two days before I met Sheikh, and his colleague from the Alternative Law Forum, Arvind Narrain, the SC had decided to look at Section 377 again. The two lawyers were jubilant. Not only is it rare for the court to admit a curative petition to reverse one of its rulings, but the order also suggested that there would be a finding on the constitutionality of Section 377, which would have to address issues of privacy, dignity and freedom of expression.
Moral predicament
The case of Section 377 presents India with a moral predicament. It was not ancient India that proscribed homosexuality; the English colonisers gave India the law. India made it its own; the English have long since disowned it. Is India obliged forever to revise its morality in accordance with changing norms in the West? The two lawyers had thought hard about how India could find its own moral centre. It is a country where young heterosexual couples face almost as much pressure as homosexual ones over love that crosses caste or religious lines. Narrain wondered if, in this context, it might be possible to conceive of a right broader and more basic: “Could one talk of a ‘right to love’ in the Indian constitutional framework?” I had never heard of such a thing. A right to love? Does it exist anywhere?
“No,” Sheikh said, “and till now it has largely been regarded as a T-shirt right.” But the day before, the two lawyers had been at a conference, and the language of a right to love had come up – an enshrined right for any person to love and make a life with the person of her or his choosing.
This would be momentous in India, where society still views marriage as a contract between families. But a right to love would be revolutionary for the whole world and would make India something of a pioneer in international human rights. A right to love would always have been a dream, but in the present climate in India, even basic rights are out of reach. A majoritarian wave is sweeping across the country. Prime Minister Narendra Modi’s government is seeking to impose its politicised version of Hinduism not just in people’s bedrooms but in universities and even in diets.
Last December, Congress leader Shashi Tharoor introduced a bill in Parliament that would decriminalise all consensual sex between adults, regardless of gender. The ruling BJP defeated it 71-24. He reintroduced it earlier this month, and it was defeated again. It is now up to the judiciary to lead the way toward gay rights.
The gay rights movement has often dreamed biggest at the worst of times. This is a bad time in India, a time of curtailed freedoms and creeping authoritarianism. In such an atmosphere, there is something wonderful in the idea of a court in this once great democracy replacing an outdated Victorian law with something as simple and attractive as an unalienable right to love.