By Rovel Sequeira:
Franz Kafka’s early 20th century novel The Trial manifests certain eerie similarities with the plight of LGBT citizens living in modern India. As in the world of The Trial, whose protagonists live in constant fear of being imprisoned in a State which presumes their guilt before accusing them of any particular crime and even before they commit any, India’s LGBT individuals are perennially in fear of being apprehended, and of being branded as criminals. The key difference is that in ‘The Trial’, no one has any idea about the law the protagonist Joseph K has supposedly transgressed against. Here, in 21st century India, we know exactly which law has become a nightmare reality in India’s LGBT population’s everyday lives, a law which constantly circumscribes its movements, invades its privacy and places it under constant surveillance — Section 377 of the IPC.
In the aftermath of the Supreme Court’s verdict on the 377 case, many academics and members of civil society commented on the retrogressive nature of the judgement, reserving particular criticism for its archaic and repressive wording. One of the key arguments cited in the verdict was that the fear of the misuse of the law could not become grounds for its being read down. In any case, the Court was apparently not convinced about the discrimination caused by the law against the country’s LGBT population, despite specific instances of abuse being cited to it. Taking a look at specific instances of ‘use’ and ‘misuse’ of the law, we come to see that there is no difference between these two terms as far as Section 377 is concerned.
Indeed, rather ironically, a month prior to the Supreme Court’s reading out of the judgment in December 2013, 13 men in Hassan, Karnataka, were accused of having violated section 377. 8 out of those 13 were picked up from public places on the alleged accusation of public sex but were charged with Section 377 (carrying a sentence of 10 years to life imprisonment) instead of being charged with public nuisance (carrying a sentence of 3 months). Many of these 13 were arrested in front of their families and neighbours causing them irrevocable damage in terms of their reputation in society, given the stigma attached to sexual relations between men in India and particularly in non-metropolitan areas.
In the same context of abuse of the law, one of the arguments of the plaintiffs while drafting a plea for the review of the Supreme Court’s judgment was that, since the Delhi High Court’s judgment reading down Section 377 in 2009, a number of individuals had come out to their families and to society as LGBTQ, perceiving a possibly more favourable environment for tolerance, if not acceptance. The Supreme Court’s judgement places these individuals in a particularly dangerous position, rebranding them as criminals after they have made themselves visible, thereby making them easy targets for emotional and physical abuse and discrimination. Tragically, a month after the judgment, this is exactly what has happened. In Gujarat, a man who had participated in the Gujarat gay pride  march quite openly was later identified by two cops posted on security duty during the march and later and was brutally raped by them. (Or rather, he was sexually assaulted, since rape laws in India still don’t consider men as possible victims of rape). The case bears sinister resemblance to the story that plays out in Onir’s National Award-winning film- I Am– where a gay man living in pre-Delhi High Court Judgment times is hustled, extorted, and sexually assaulted by a policeman even before he has violated Section 377. These instances should make it quite clear, that the queer community in India is perpetually vulnerable to the abuse of this law by the police.
It is in this light that the Supreme Court’s reading of Section 377 as constitutionally valid is especially painful, given that after it had failed to protect Indian democracy during the Emergency, it had declared that it would, henceforth, protect the weak and the marginalized. Its refusal to read down the law for what it considers a ‘minuscule’ population, therefore, is deeply inimical to the very spirit of democracy, which is far more than a majority-rule framework and operates on the principle of constitutional morality rather than social morality. Besides, the judgement, while theoretically also criminalizing ‘straight’ non-peno-vaginal sex, fails to consider that the LGBT population seems ‘minuscule’ only because it is a scarcely visible subaltern group, one in constant danger and therefore, most in need of safeguards. While there have been few cases of actual prosecution of people under Section 377 (about 200 in its 150-year history), there are countless instances in which it is repeatedly used to blackmail, extort and abuse LGBT individuals, as in those already enumerated above. The incident of the blatant violation of privacy, and discrimination against Aligarh Muslim University professor Ramachandra Siras (a sting operation replete with cameras was installed in his house to film him having consensual sex with a rickshaw-puller) in 2010, leading to his sacking and eventual suicide, is another case in point. For a further list of cases registered under Section 377, click here. What is particularly startling and frightening is that Section 377 is also being used to hamper with efforts to control the spread of HIV in India, as in a 2001 case in Lucknow where healthcare workers were arrested under it for distributing condoms.
Ironically, pre-British India was a lot more inclusive of same-sex relations and even ancient Hindu mythology, in the Khajuraho temple sculptures for instance, or in the Ardhanarishwara myth, accepts homosexual expressions of sexuality as a natural variant. Reading down Section 377, therefore, would actually be in keeping with Indian religious and cultural heritage, rather than an import from the West, as the religious orthodoxy in India would have us believe.
Meanwhile, even in other countries with a history of British colonial rule, and therefore, with similar histories of criminalizing male-male sexual relations, Section 377 and its equivalents are blatantly misused to this day. In Malaysia, for instance, where the law is still in place, the leader of the opposition party, Anwar Ibrahim, was accused by the ruling party of having had ‘’unnatural sex’’ with one of his top aides. Ibrahim was later acquitted by the High Court on the grounds that the evidence was possibly tampered with by the investigating agencies. Similar laws are being used on a daily basis to extort, harass and physically abuse the LGBT communities in other erstwhile British colonies including Pakistan, Bangladesh, Bhutan, Singapore, and a host of African and Caribbean countries. Getting over a colonial hangover is not as easy as getting rid of one’s imperial rulers. Getting rid of Section 377 would, therefore, be an essential step in true decolonization.