Homosexuality: India, 'rainbow nation' or stuck in Dark Age

In June 2015, 26 million netizens across the globe changed their Facebook profile photos to a rainbow flag, celebrating legalisation of same-sex marriage in the United States. Indian internet users followed suit, without much knowledge about the issue. But, do we realise even now that armchair activism is not enough in serious matters like this?

The much-debated Section 377 of the Indian Penal Code, understood to criminalise consensual homosexual conduct, provisions the State to invade the lives and intimacies of probably millions of adult Indians who are living in constant fear and hiding, and suffer social stigma.

The most popular and least informed discourse against homosexuality in India is that it is a behaviour imported from Western culture and against religious morality. Little do we realise that homosexuality in India has references from as old as 400 BC, and that too in some of our holy scriptures, which have rightly defined it as part of nature.

In fact, British colonial laws, such as Offences against the Persons Act, 1828, and Criminal Tribes Act, 1871, criminalised homosexuality as 'unnatural'; clearly, while the British have left India, we still hold on to them by embracing their archaic, irrelevant, draconian laws.

The judgement in favour of Section 377 in 2013 in the Naz Foundation case, which essentially "re-criminalised" homosexuality, is what marks a departure from the 'activist' stance of the Indian judiciary that global courts have often adopted in cases of human rights. The Supreme Court needs to be more inclined towards judicial activism, especially after the recommendation and evidences for deletion of Section 377 from the 172nd  Law Commission Report, chaired by Justice BP Jeevan Reddy. The rationale in favour of Section 377 was that it was used in cases of sexual abuse of male children, since there is no other adequate provision for that offence.

But in light of the changes in Section 375 and 376E, Section 377 makes no sense, concluded the report. Sections 375 and 376E are intended to cover "those forms of child sexual abuse wherein the abuser touches the victim with sexual intent, directly or indirectly".

Indian judiciary has in the past embraced procedural and substantive activism to reach out to the otherwise invisible victims of Section 377. In the matter of establishing LGBTQIA (lesbian, gay, bisexual, transgender, queer, intersex, allies) rights, judicial activism can go a long way, when Parliament is least representative, in person and thought, of the will of the victims.

The World Value Survey (WVS), done through random sampling in 160 parliamentary constituencies in India in 2012, showed that 73.1% of the Indian population believes that homosexuality is not justified. This figure was 47.3% in the 2006 survey. Further, 65% of respondents said they would not want to have homosexual persons as neighbours, up from 40.3% in 2006.

There are two conclusions that blatantly expose our society's conservatism, duality and hypocrisy. Firstly, Indians do not seem to be at all tolerant towards the spectrum of gender identities. Secondly, we are fast moving towards a regressive mindset which was probably less obvious a few years back. Why are the liberal ideologies and mindsets diminishing?

Another trend came to limelight while studying a third value of the WVS survey --  'Emancipative Value'. Only 7.9% people responded that India has a strong emancipative value. It means that the principles of equality, autonomy, the right of choice and freedom of voice are jeopardised. Emancipative values are defined by effects that encourage mass action that puts power-holders under pressure by re-establishing the principals of equality and freedom. A weak emancipative value means a lack of human empowerment.

Economic cost

Homophobia costs India an estimated $31 billion annually. As per World Bank reports in 2014, the Indian economy lost between 0.1 and 1.7% of its GDP because of homophobic attitudes. LGBTQIA persons are often invisible from economic conversations, as a result of which the state also turns a blind eye to their needs. This is evident from the fact that the inclusion of transgender persons as an identity in our Census reports came only in 2011.

As a result of a dearth of political will and legal framework on anti-discrimination, even many multinational companies in India do not have an effective, institutionalised diversity management department, commonplace in European nations. One of the major ways to create an atmosphere in support of homosexuality is gender-variant inclusive employment measures. This is now part of the mainstream agenda across the world, because it is accepted that exclusion and inequality increase social conflicts and economic pressure. India should move towards this goal quickly.

Stonewall's 'Top 100 Employers' report reveals trends in favour of anti-discrimination policies at workplace in Europe. It shows that people who feel comfortable disclosing their sexual identity at the workplace are much more likely to report being satisfied at work. It is therefore high time India, which aims to be a socio-economic superpower soon, focuses attention on this aspect of "humane strategy".

Disappointingly, more than 70 countries still criminalise homosexuality. It invades privacy and create inequality, and indeed put a person's dignity at stake and push such people to live in silence and in fear of being bullied by institutions or individuals. Homosexuality is punishable by death in 13 countries - Sudan, Iran, Iraq, Nigeria, UAE, Qatar, Saudi Arabia, Syria, Somalia, Yemen, Afghanistan, Mauritania and Pakistan.

India needs to decide whether it wants to be seen as an inclusive rainbow nation or be in the company of these countries mentioned above, insensitive and intolerant to homosexuality.

(The writer is a German Chancellor Fellow at Alexander von Humboldt Stiftung, & Fellow at Harriet Taylor Mill Institute, Berlin School of Economics and Law)