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Saturday, December 3, 2016
- Human rights have taken a step back in India, activists say after the Supreme Court overturned a ruling of the High Court that had earlier lifted the ban on gay sex.
The Delhi High Court ruling had in effect suspended application of Article 377 of the Indian Penal Code (IPC). The article, which criminalises homosexuality, was introduced in India in 1860 under British colonial rule, echoing conservative Victorian values of the age. The 19th century law indicts homosexuality as going against the law of nature by indulging in “unnatural acts”.
The Delhi High Court ruling was in response to a petition filed in 2001 by the Naz Foundation, an NGO in Delhi, that challenged the constitutional validity of the article on the grounds that it criminalises homosexual acts even between two consenting adults.
Some religious leaders including Hindus, Muslims and Christians challenged the Delhi High Court ruling before the Supreme Court. The Supreme Court this week upheld their appeal and quashed the verdict of the High Court. The Supreme Court noted that the LGBT community in the country is “miniscule”.
The author of A Suitable Boy, Vikram Seth, who is open about his sexual orientation, minced no words when he said in an interview with news channel NDTV, “I was not a criminal yesterday, but I am today.” He called the Supreme Court ruling “barbaric”.
Many people in India, not necessarily from the LGBT community, believe the upholding of Article 377 is a step to once again criminalise the LGBT community, and is a violation of human rights. “It shows a medieval mindset,” said Indira Jaising, additional solicitor general. She argued that India has lost an opportunity to correct a centuries-old wrong.
The unexpected verdict initially stunned activists, but the impact is sinking in now. Tripti Chandon of the Lawyers’ Collective in Delhi which represented the Naz Foundation told IPS there is a “slim chance” to reverse the judgment by filing a review petition. “We’ll do that,” she said.
Usually the same judges sit to re-examine a petition. But in this case one of the two judges who delivered the ruling retired the day after pronouncing the verdict.
The “unnatural act” stamp can also affect heterosexuals because oral sex is included. “So are we condoning voyeurs in the private domain?” Chandon asks.
She points to the case of Prof. S. Ramchandra Siras of Aligarh Muslim University near Delhi who was filmed by some intruders with a spy camera when he was with his partner. He was suspended by the university on the basis of this ‘evidence’ of his moral turpitude.
“Fortunately, that was in 2010, after the Delhi High Court verdict, and lawyers successfully fought the case in the Allahabad High Court on the premise that he could not be penalised. He was reinstated by the university. The punishment should have been given to those who barged into his private quarters to take photographs illegally.”
Siras, who had expressed a desire to work for the gay community died soon after, under ‘mysterious’ circumstances.
Malobika, founder member of Sappho for Equality, a lesbian empowerment group in Kolkata, told IPS: “The Supreme Court verdict is a setback not only for the LGBT movement, but for democracy as well. For the last four years we have been slowly building up the trust for inclusiveness, and people were coming out more courageously about their sexuality in our society. But now they will go underground for fear of harassment.”
She fears that without the legal back-up, police harassment as well as societal pressure will rise. Openly gay people will find it difficult to find jobs, she said. Lesbians will find relationships more difficult due to society’s conservative mindset, she said. “Basically under Article 377 IPC we are criminals.”
Pawan Dhall, a founding member of Varta, a voluntary organisation on gender and sexual education in Kolkata, told IPS: “The verdict will have a far-reaching and adverse impact on public healthcare. Today, the thrust of the HIV/AIDS programme worldwide is on the MSM [men having sex with men] community, along with the commercial sex workers. We fear that people from the MSM community who came to take care of healthcare needs may prefer to be invisible again.”
Dr Dilip Mathai, vice-president of the AIDS Society of India, said in an interview in the Times of India, “The homosexual act will not disappear but the community seeking help will reduce drastically.”
The Supreme Court judgment quoted data from 2006 furnished by the ministry of health and family welfare, indicating that of the estimated MSM population of 2.5 million in India, 10 percent are at risk of HIV infection.
The Supreme Court has placed the onus of changing the existing law on parliament. Activists do not hold much hope that parliament will move swiftly when only about five months are left for the next general election. They fear that apprehensions over a conservative backlash may hinder any positive action.
However, several of the ruling Congress party’s representatives have said a review petition should be encouraged with a greater number of judges. Representatives of some other political parties have also expressed outrage at the verdict.
Meanwhile activists vow to continue the struggle for recognition. “The court has overturned a verdict, it hasn’t overturned a movement,” said Malobika. “We’ll overcome the hurdle at one time or another.”