Subscribe to South Asia Citizens Wire | feeds from | @sacw
Home > Sexuality Minorities > Out of the closet and into the courts in India

Out of the closet and into the courts in India

by Balaji Ravichandran, 30 September 2008

print version of this article print version, September 30 2008

At last, it is official. The Indian home ministry, speaking on behalf of the federal government declared last week that it would "violently oppose" any plea to decriminalise homosexuality in the country. Calling it a "moral perversion", and "a social vice" that needs to be contained, the ministry suggested that Indian society’s strong and overwhelming disapproval of homosexuality was reason enough to treat it as a criminal offence.

This was all a bit odd, as the health ministry, also a part of the federal government, took quite the opposite position, supporting the plea filed by over 30 voluntary organisations to "read down" the 150-year old anti-gay law, which, by criminalising anything outside heterosexual vaginal intercourse, carries a maximum sentence of life imprisonment.

The Delhi high court seemed sympathetic, and censured the government severely for its indifferent attitude to the case and for speaking in two voices.

But why should the government take such a step after all? First, sexuality is a taboo in India – and has been for centuries, despite academic beliefs otherwise. Public displays of affection, even between members of the opposite sex, are considered deeply offensive. At least 11 states have independently banned sex education in schools on moral grounds, despite the fact that India has one of the highest rates of HIV infection in the world among young people.

Second, homosexuality is indeed held in deep contempt by a vast majority of Indians. Most men who are aware of their sexual orientation prefer to keep it a secret, for fear of social ostracisation. Besides, having an anti-gay law doesn’t help. The law is used almost on a daily basis by the police to commit institutional abuse – in the form of blackmail, extortion, harassment, and even rape or murder – although such incidents mostly go unreported.

Third, and this is probably the most important reason, politicians fear that supporting gay rights could prove political suicide. Such fears are not necessarily unfounded. With rare exceptions in the national press and television, portrayal of gay men and women by the sensationalist Indian media has been hopelessly and stereotypically negative, often equating homosexuality with paedophilia and bestiality – views likely to be shared by the voting population.

Having said all this, an increasing number of gay men and women refuse to be treated as criminals because of their sexuality. Indeed, recognising this, the Delhi high court went so far as to make helpful comparisons between the dehumanising effects of the current law and those of caste-based discrimination.

The possibility therefore exists that the court may end up ruling in favour of decriminalising homosexuality. If so, a bitter legal battle is then likely to commence between gay rights activists and the government – one that will be played through the supreme court, and in the full glare of the hungry media.

And that is not necessarily helpful. Indeed, should there be any indications that consensual gay sex would be legalised, it is likely that there will be a flurry of legislations that are blatantly anti-gay, and likely to appeal to the voting public.

For example, same-sex marriage and adoption, and any accompanying benefits, hitherto unlegislated, could be outlawed. Laws similar to Section 28 may be introduced. And it will certainly take a very long time before gay men and women have any semblance of equality with their heterosexual counterparts.

The key to gay rights in India lies not just in legislation, but in educating an overwhelmingly conservative public, and raising awareness about the normalcy of sexual plurality and the need for tolerance and acceptance. And that will take time and effort.

Unfortunately, where even gay rights groups often struggle with ideological differences, few people in India seem to care enough to make that effort.