Being human is a crime today

On December 11, the Supreme Court upheld a law that dates back to the British era and criminalises gay sex even if it is consensual and between adults in private. The verdict infuriated the lesbian, gay, bisexual and transgender (LGBT) community, which termed it as a severe setback and demanded legal freedom to live on their own terms.

Section 377 of the Indian Penal Code states: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal can be punished up to life. The ruling has come as a cruel blow to thousands of homosexuals in the capital, with many living together since the Delhi High Court decriminalised same sex relationships in 2009.

Reversing the Delhi High Court verdict, the apex court said that the lower court extensively relied on judgements of foreign countries that “cannot be applied blindfolded for deciding constitutionality of Indian law”.

A bench of Justices G S Singhvi and S J Mukhopadhaya agreed that gay sex is against the cultural and religious values of the country.  

Since the verdict was pronounced, hundreds of people belonging to the LGBT community and supporters have held several protests at central Delhi’s Jantar Mantar. They held placards and banners that read “We are not criminals” and “Loving another human being is not an offence”. The slogan “Humein chahiye azadi (we want freedom)” rent the air at the protest venues. 

“It is not a sin to be gay and I’m proud to be one. It took years for my parents to accept it but homosexuals will go back into their shells after the verdict,” public relations consultant Adhish Malhotra says.

Seventy-year-old Vani Sharma who came to a protest to support her grandson says the LGBT community doesn’t have to be scared of anybody. “It is important to accept change. Who are we to tell these kids who to love and be in a relationship with? It is a natural feeling. Like other people these kids should be able to live their life without fear,” she adds.

Groups that led the protests against gender inequality after the December 16 gang rape also joined the latest demonstrations. They include student groups from Delhi University and Jawaharlal Nehru University. 

“I believe the verdict will result in increased policing on university campus and harassment of homosexuals. The protests must continue till the order is reversed,” Delhi University PhD student Vikramaditya Sahai says.

Gay rights activists say the 2009 Delhi High Court order encouraged people to reveal their true sexual orientation. Their families too accepted their decision as the law did not consider it to be a criminal offence. 

“After the latest order our children will be considered criminals. The Delhi High Court provided a ray of hope to many families but the Supreme Court is knowingly dismissing the rights of the community,” mother of a lesbian Chithra Paleka says.

Criminalising same sex relationships will also lead to further alienation of the LGBT community and cause a severe setback to HIV/AIDS prevention efforts, say social workers.

The central government had earlier informed the apex court that there were an estimated 25 lakh gay people in the country and seven per cent of them were HIV-infected. The Union Health Ministry in its affidavit said it plans to bring four lakh high-risk 'men who have sex with men' (MSM) under its AIDS control programme and it had already covered two lakh of them. 

Gay rights NGO Naz Foundation expressed disappointment over the verdict. It had moved the Delhi High Court seeking exemption of consensual sex between two adults in private from Section 377 of the IPC. The NGO says it will file a review petition. “Protests will be organised in cities to build pressure on the court,” Anand Grover of Naz Foundation says.

Society for Peoples’ Awareness, Care and Empowerment has also been holding protests in the capital to put pressure on the government. “We have erected a pillar of protest and people who support us can tie a thread to register their support. It will be presented to Union Law Minister Kapil Sibal at the end of the campaign,” founder member of the group Anjan Joshi says.

Giving a helping hand to the community, the central government on Friday filed a review petition against the apex court judgement and favoured decriminalisation of same sex relationships. The petition claimed that the court failed in its constitutional duty to protect the community’s fundamental rights. 

“Section 377 criminalises the only form of sexual expression, that is penile-oral or penile-anal sex of homosexual men and transgender/hijra persons,” the petition states. “The judgement strikes at the root of the dignity and self-worth of homosexual men and transgender/hijra persons. The Supreme Court has not addressed this issue at all despite a clear finding from the Delhi High Court on the same,” it states.

The petition further pointed to fundamental changes in societal dynamics that forced many countries to decriminalise gay sex between consenting adults. 

The apex court is closed for winter break and the petition will be taken up only after the court opens on January 1. A new judge will take up the issue with Justice S J Mukhopadhaya after the retirement of Justice G S Singhvi, who authored the judgement.The Aam Aadmi Paty, which may form the government in Delhi, says it will consider giving sexual minorities some role in the party’s decision-making units. 

The party’s constitution includes a provision to include socially disadvantaged groups within the party’s local, district and national level executive committees. 

Humsafar Trust founder Ashok Row Kavi says it would be a brilliant move on AAP’s part and it is also a good way of bringing sexual minorities into the mainstream in the capital.