Section 377 and the fight for LGBT rights in IndiaLaw and Order September 5, 2019
“What counts is not necessarily the size of the dog in the fight ─ it's the size of the fight in the dog,” Dwight D. Eisenhower once pointed out. New York City police discovered this 50 years ago during the pre-dawn hours of June 28, 1969. At the time homosexuality was criminalized in the United States, and police regularly raided gay bars as they were one of the only places where the gay community could meet and socialize in a tension-free atmosphere. Even when the bar owners paid off the police, token raids still occurred. The police also slipped into gay bars out of uniform and propositioned the patrons for sex – and promptly arrested them if they showed interest.
But the script played out differently at Stonewall Inn that night. Something was bound to give, sometime, somewhere. That night patrons and neighborhood residents fought back with their fists, and with bottles, drink cans, beer mugs, stones, and anything else they could lay their hands on. As the crowds swelled, the police were outnumbered and on the run until reinforcements arrived. For the first time, a sexual minority group combated state-supported persecution head on. Not a soul knew it yet, but the pennant of the gay liberation movement in America had unfurled.
India’s Stonewall, or Not?
Forty years later almost to the day of the Stonewall riots, the Delhi High Court passed a landmark document that modified an archaic 148-year old British colonial law criminalizing homosexuality. The long-oppressed sexual minorities of India had fought back through the legal system — a protracted court battle lasting over eight years. It ended on July 2, 2009 when the court read down Chapter XVI: Section 377 of the Indian Penal Code which criminalized "whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal." Reading down is a legal term to indicate that a court has given a law with a wide interpretation a narrower or restrictive interpretation instead of declaring the law itself to be unconstitutional. For example, sexual relations between consenting adults of the same sex in India were no longer criminal, but Section 377 could still be used in cases like male rape. “India’s Stonewall!” the press trumpeted, although it was much too early to say if it merited that description.
Right-wing zealots from every religious group united to challenge the ruling in the Supreme Court. India’s Supreme Court differs from that of the United States in that the Indian top court can have a maximum of 33 justices in addition to the Chief Justice of India. Cases are assigned to a bench, usually of three to five justices. In this case, which was heard in 2013, the bench only had two justices who, in a tunnel-vision interpretation, ruled that Section 377 was not unconstitutional, and any revisions to the law should be made by Parliament. In other words, a state High Court could not read down the law; the legislation itself had to be repealed or amended, until which time it remained valid.
Following the Delhi High Court ruling, droves of people from all over India revealed their same-sex orientation. The Supreme Court’s reversal of that ruling turned these people into unapprehended felons. Most of them – like the patrons of Stonewall on that fateful night – were defiant; there was no slinking back into the closet, which would have been nearly impossible anyway.
Under pressure from India’s LGBT community, and under intense national and international scrutiny, the Supreme Court took the unusual step of reviewing its own decision by a curative petition. The curative petition itself is a curious judicial creation – there is no specific mention of it in India’s Constitution, although Article 137 states that the Supreme Court can review any of its judgments. The curative petition is a remedy in law that was created by the Supreme Court. It only applies on narrow grounds – to cite two, failure of natural justice (for example, the petitioner could not appear and therefore was not heard by the court), and undisclosed bias of the judge hearing the case which adversely affected the petitioner.
In the history of the court, only three curative petitions were previously successful in getting the court’s judgment overturned. So, although the chances of getting lucky a fourth time were slim, for the LGBT community this was literally the last gasp attempt for legitimacy from the heavy hand of the law. The curative petition was filed by respected mental health professionals including senior psychiatrists, psychologists, and counselors on the grounds that the Supreme Court had erred in interpreting Articles 14, 15 and 21 of the Constitution, and had not considered scientific evidence before re-criminalizing homosexuality. The case was assigned to a five-bench panel headed by the Dipak Misra, chief justice of India.
Further, the matter was no longer an academic issue. Individuals from the LGBT community were not afraid to appear in court and narrate their stories. They changed Section 377 from obtuse legalese into a very real everyday issue through their expressions of heartbreak.
This bench of the Supreme Court unanimously revoked Section 377 on September 6, 2018, ruling that homosexuality was no longer a crime in India, and that LGBT citizens have the same sexual rights as any other citizen. The opening sentence of its judgment quoted Goethe: “I am what I am, so take me as I am.”
India’s Politics of Sexual Orientation
India’s conservative government, formed by the Bharatiya Janata Party, did not challenge the court’s ruling despite the risk of upsetting its voter base that were sticklers for traditional values such as marriage being only between a man and a woman. Never mind that the Hindu scriptures describe many instances of same-sex relations and of deities changing their gender, and that the Kama Sutra has an entire chapter on the subject. Prime Minister Narendra Modi, whose exuberant oratory is one of his trademarks, was prominently silent about the court decision. Neither has his government taken steps to ease the myriad obstacles the LGBT community faces. To be fair, the Congress party currently in opposition governed India for decades during which they did nothing about Section 377 or the problems faced by the LGBT community either.
The original case, which the Delhi High Court had ruled on in 2009, pleaded that Section 377 squelched HIV/AIDS prevention and care measures from reaching the LGBT community. It was a solid plea based on medical and behavioral science, unlike the more abstract protestations in the past. Previously, whenever Section 377 was challenged, the government of the day offered the feeble excuse that the law was necessary, for it was the only one under which they could prosecute pedophiles. Any parliament in these more than 70 years of independent India could have repealed the clumsily worded and hopelessly outdated Section 377 and replaced it with new legislation specifically covering male rape and pedophilia — if it wanted to.
In fact, Section 377 has seldom been used to prosecute the real offenders. But street rowdies and the police invoked it to harass gay men and blackmail, rob, and rape them. Finding themselves entrapped, LGBT individuals were forced to fork out cash to be let off the hook and, if they had no money or valuables on them, pay through sex. Sometimes their tormentors demanded both. Many victims were from the lower socioeconomic groups and did not know their rights, let alone how to exercise them. They were threatened with imprisonment under Section 377 if they dared complain. So much so that many HIV-positive gays chose to avoid medical treatment out of fear of ultimately ending up, not in a hospital, but behind bars. Such an environment was a made-to-order spawning ground for AIDS and other sexually transmitted diseases.
At the 17th International AIDS Conference in Mexico City in 2008, the American Foundation for AIDS Research stated that men who had sex with men were 19 times more likely to be HIV-positive than the general population globally. At that time, India’s National AIDS Control Organisation (NACO) estimated that about 100,000 of the 2.5 million men who had sex with men in India were at high risk of HIV because of multiple sexual relationships and commercial sex, and about 15 percent of men who had sex with men in the country were living with HIV/AIDS but could not be reached because of social stigma (and of course, Section 377). At the conference, Anbumani Ramadoss, then India’s Health Minister, a physician himself, voiced his opposition to Section 377 on these grounds.
After Anbumani Ramadoss left the cabinet, his replacement Ghulam Nabi Azad publicly called homosexuality a disease that had invaded India from distant shores, and that unnatural gay sex was fast spreading in India and those indulging in it were difficult to detect. AIDS activists, human rights activists, and many other groups were outraged. Then Prime Minister Manmohan Singh, Congress Party president Sonia Gandhi and the heir-apparent Rahul Gandhi, never publicly reprimanded the minister nor commented on his remarks. Neither did they voice their own positions on this issue. Azad protested that he had been misquoted by incompetent journalists. Unfortunately for him, his comments had been videotaped. However, Shashi Tharoor, former Under Secretary-General of the United Nations and currently a member of Parliament from the Congress party, has doggedly fought for LGBT rights in India, undeterred by the frosty receptions he has received in Parliament or by what the top echelons of his party might or might not want.
The political parties in India seem to have finally caught on that the LGBT community could swing elections if the majority of its members voted as a single bloc. The Communist Party of India-Marxist became the first political party to support the LGBT cause in its 2014 election manifesto, quickly followed by the Congress Party (whose highest decision-making body, the Congress Working Committee, includes the former health minister, Ghulam Nabi Azad).
The Legacy of Stonewall in America
The LGBT community in the United States did not let the Stonewall raid remain an isolated incident. They started activist movements with groups all over the country, organizing pride parades, magazines and radio broadcasts, distributing leaflets and petitions, holding dances and fundraiser events alongside protests and pickets. Advocacy groups surfaced on college campuses. Gay activists like Harvey Milk were elected to public office.
Perturbed by the sharp internal differences within the LGBT community that led to rifts resulting in many splinter cliques that engaged in internecine fights, Milk asked his friend Gilbert Baker to design a logo that would serve as a unifying symbol, an expansive umbrella under which all factions could gather. Thus the rainbow logo was born; it is now recognized the world over as representing the LGBT community. It indicates that the community’s many subdivisions, portrayed by the different colors, can retain their individual viewpoints – but without all of them joining together, there would be no rainbow. Likewise, India’s LGBT community is also fractured, and its leaders need to understand that their similarities far outweigh their differences, and guide their groups accordingly.
In the midst of the 1970s activism, the medical profession announced that homosexuality was not a mental malady. Gay bars and bathhouses flourished. The world seemingly became a Shangri-La where one could be happy and gay. Their main opponent was the Christian church; its moral code had crept into governance although, as Thomas Jefferson once pointed out, the spirit of the First Amendment of the Constitution required Church and State to stay at well more than arm’s length.
Then, from beyond the wide blue yonder, a mystery illness struck like a thunderbolt. The disease was eventually named Acquired Immune Deficiency Syndrome (AIDS). Religious conservatives, in voices well trained to echo gloom and doom, called it God’s wrath descending on all those unrepentant gay sinners. And President Ronald Reagan, pandering to his political base, cut funds from agencies whose aim was to tackle new diseases like AIDS. Not until 1987, near the end of his second term, did Reagan even mention AIDS in a public speech.
Around this time, the same-sex-oriented community started using the acronym LGBT, which stood for Lesbian, Gay, Bisexual and Transgender, with some adding a Q for Queer and others adding an additional I, for Intersex, signifying individuals with both male and female characteristics. In the mid 1980s, the United States Supreme Court began hearing cases involving LGBT rights. In 1986, the court ruled 5-4 to uphold laws passed by 24 states and the District of Columbia that banned sodomy or non-vaginal sex between consenting adults in the privacy of their own homes. India’s Supreme Court, however, wasn’t the only one that did a U-turn on such matters. In 2003, in an astonishing reversal, the United States Supreme Court ruled 6-3 that the Texas sodomy law prohibiting private consensual homosexual activity was unconstitutional. Because it came from the highest court in the land, the ruling applied not just to Texas but to every state in the republic, thus invalidating other states’ anti-sodomy laws.
Military service for members of the LGBT community has also been complicated. From Bill Clinton’s “Don’t Ask, Don’t Tell” to Barack Obama’s removal of all restrictions on LGBT individuals serving in the military and now Donald Trump reinstating restrictions on transgender members. The fight never ends. As Dostoevsky observed: “Beauty is mysterious as well as terrible. God and Devil are fighting there, and the battlefield is the heart of Man.”
Simultaneously with the right to serve in the military, LGBT activists pressed for equality in marriage. Most Americans irrespective of their political leanings have historically agreed that marriage was between a man and a woman. Then, in 1993, the Hawaii Supreme Court ruled that same sex couples could marry, invoking a provision in the state constitution that prohibited discrimination based on gender. Alarmed, the conservatives in Congress passed the Defense of Marriage Act (DOMA) in 1996 which defined marriage to be between woman and man. President Clinton, keenly aware of his impending reelection, signed it into law. But LGBT activists doggedly chipped away at it. They petitioned the Supreme Court that the Hawaii law and DOMA contradicted each other and asked the court to make a call.
America was changing, slowly but definitely. By 2012, for the very first time, a majority of Americans supported gay marriage. Then Barack Obama became the first sitting president to support the right of all American citizens to find fulfillment through marriage, irrespective of their sexual orientation. In 2013, the Supreme Court struck down the key provisions of DOMA, ruling that the federal government could not withhold the rights granted by marriage from same-sex couples. The Supreme Court went further: on June 26, 2015, it struck down all state bans on same-sex marriage, legalized it in all fifty states, and required states to honor out-of-state same-sex marriage licenses through its ruling in the landmark case, Obergefell v. Hodges.
The Stonewall riots have become so legendary that they have been credited with starting the LGBT movement. However, many plucky but unsung heroes had already laid the foundation; the riots were only the catalyst that caused the forward surge. How far the surge went could be seen in New York’s LGBT parade of 1996, which is always timed for the end of June to commemorate Stonewall, when city police officers – in uniform – marched in the parade alongside gays.
But those who are opposed to society’s acceptance and embracement of its LGBT members are just as vociferous. Gay marriage is legal in the United States but current presidential candidate Pete Buttigieg, the first openly gay man to run for the presidency, gently reminds his audiences that it is only so “by the grace of a single vote on the United States Supreme Court.” But for one vote, the decision in Obergefell v. Hodges could have swung the opposite way. And legislatures and governors of conservative U.S. states are enacting laws under other provisions such as religious freedom to set back the progress of LGBT individuals against previous discriminatory laws that were repealed. Besides barring transgender people from military service, President Trump has appointed judges with anti-LGBT records and forbidden U.S. embassies and consulates the world over from flying the Rainbow Flag, even to mark the 50th anniversary of Stonewall. So much so that despite all the advances made by the gay community in the last half-century, many young gays in America still feel that the closet is by far the safest option.
In the Wake of Section 377
Ruth Vanita, Director of South and Southeast Asian Studies at the University of Montana, recollects in her book Love’s Rites that over the many years she taught at Delhi University, she knew colleagues and students who lived together as same-sex couples, and that two of these couples raised children. Vanita mentions several same-sex couples who lived together happily with the support of their families, and presumably also the support of their friends, and that many of them were from low-income families, spoke no English, had no contact with LGBT groups, and had never heard the words gay or lesbian. There were also many LGBT couples who committed suicide. And all of this occurred when Section 377 was the law of the land.
Although some couples managed to lead happy lives, there was discrimination. And that discrimination continues even though Section 377 is no longer the law. Landlords who refused to rent to same-sex couples will quite likely continue to do so, as will employers when it comes to hiring and firing, or promotions and salary raises. Restaurants, bars, and social events where gays are not welcome will stick with their policy. Relatives, friends, and strangers will look down and pity parents who have gay children, so that these families will voluntarily cut themselves out of their social circles or ostracize their gay children to better the chances of their own social status. Even if same-sex partners are fully accepted as a couple by the community they live in, gay marriage or civil unions are not, and are far from becoming, a legal entity. India’s laws do not recognize such partners as being either next of kin or legal heirs in terms of inheritance or other benefits. Legal status and social acceptance have to be tackled separately.
America did not change overnight after Stonewall. It took decades of dogged, persistent pushing from the LGBT community and their supporters, often in the face of overwhelming despair, to bring about change. And for all the progress made, many American LGBT members today still face the same issues that their counterparts in India face. Americans are divided on whether LGBT people are discriminated against on the basis of their sexual identity. Conservatives claim that LGBT people face little to no discrimination, and that they are no longer a vulnerable minority but a mainstream group —LGBT people are featured on television programs and in movies, and many businesses have put their own nondiscrimination policies in place. But LGBT people consistently face discrimination in everyday life. A recent study from the University of California’s Williams Institute found that lesbian, gay, and bisexual people reported higher rates of being bullied, fired, or denied a job, promotion, or lease when compared with heterosexual people. And subtle experiences are hard to document or prove. The ability to file a legal complaint depends on where the aggrieved party lives: 20 states fully prohibit discrimination based on sexual orientation and gender identity, 28 do not, and two, Wisconsin and Utah, sit uncomfortably on the fence.
The Story of Arnab Nandy
That America still struggles must be sobering for India’s LGBT community. Perhaps one takeaway message is that to successfully push for the needed legal protections and social acceptance, the LGBT community would still need internal support from family and close friends, and external support from those who aren’t gay themselves but who are inclusive and understanding.
One can get a sense of this through the story of Mumbai’s 25-year-old Arnab Nandy. His photograph with his parents went viral over social media and is credited with transforming the legal repeal of Section 377 from impersonal news coverage into something intimate and human that people in India could relate to.
On Facebook, Nandy described his struggles to come to terms with his identity and his even greater struggles to let his loved ones know. Under the title “Coming out of the closet,” he posted his picture with his parents who held a placard that hollered in capital letters: “MY SON IS NOT A CRIMINAL ANYMORE,” while his mother planted a kiss on his cheek. Nandy wrote: “Everyone takes their own time to accept themselves. Thereafter it’s a journey of self-awareness and owning your personality traits. Two years ago I lived a life which was not letting me live like a free bird.”
Social networks as a source of support are important. Nandy said once he started to mingle with other members from the community, he came to terms with his own self and decided to come out to his best friend. He continued: “My life changed at the very moment. It felt as if a butterfly coming out of a cocoon. Soon, I started coming out to my brothers I gained in college and their response was heart melting.”
Coming out to his parents, on the other hand, was an excruciating decision. Nandy wrote that they “live in a conservative surrounding” and that he felt protective of their feelings and was worried about their suffering if society turned against them. “It was hurting me to keep this within, but I didn’t want to be that selfish. Thus I took time and (when) the time was right, I got the courage to let them know about my lifestyle.” The reaction from his parents was far from negative, and Nandy acknowledged his good fortune, citing examples of other families that abandoned, abused, or tried to “cure” their children through so-called medical or psychiatric procedures. Nandy’s father was beset with concerns – not because he was angered in any way by his son’s revelation, but because he knew it was illegal under Indian law. But on September 6, when Nandy returned home, his parents greeted him with joyous smiles and hugs and said, “Congratulations, son! It’s now legal.” Nandy wrote: “I couldn’t help but let out tears of joy.”
His parents began to educate their relatives and friends. Nandy’s mother also talked him into “broadcasting” the news over social media, with her motherly and humorous tongue-in-cheek remark: ''Achha hai, abhi koi ladki ka rishta leke nahi aayega!” (“Lovely! Now we won't be flooded with marriage proposals from girls’ families for you!”) Nandy then discovered that his mother had already started to have discreet conversations with people who were close to the family even before the Supreme Court decision. “She is my gem,” Nandy clearly spoke from the heart. “From not knowing anything about LGBT to becoming a person sensitizing the people around her…I am proud of her.”
Nandy believes that it will take a long time before India comes anywhere close to accepting same-sex marriage. He feels that the next step would be to reduce the social stigma to the extent possible so that LGBT people are not forced to be other than who they are merely to squash themselves into mainstream society’s dictates.
Nandy’s acknowledgment that he is extraordinarily fortunate to have such understanding parents, when so many do not, applies not just to India but to just about every other country as well. And India can learn from some of the positive responses that have occurred in other nations. A good example is the American organization, Parents, Families and Friends of Lesbians and Gays (PFLAG). The courageous act of Jeanne Manford, a mother publicly standing by her gay son and marching alongside him in the 1972 Christopher Street Liberation Day March ─ the precursor of today’s Pride parades ─ morphed into a grassroots national organization. Groups in several countries have used the PFLAG model to bring together LGBT people, their families and friends as well as their supporters who are not LGBT themselves. India needs an organization, or a network of organizations, like PFLAG to bring about awareness, tolerance, and acceptance, and move forward towards equality and human rights for its LGBT citizens. U.S. Supreme Court justice Ruth Bader Ginsburg nailed it: “Fight for the things that you care about, but do it in a way that will lead others to join you.”
If you like this article, please consider becoming a Patron and contributing to the work we do here at The Mantle.