By Shaleen Rakesh, Citizen News Service – CNS
On 11 December 2013, the streets outside the Supreme Court of India thronged with a dazed crowd, hugging, sobbing and not quite sure what had happened. Inside the hushed courtroom, the judges had just passed a devastating ruling. Lesbians, gays, bisexual, transgender (LGBT) in India had once again been labelled as criminals. Section 377, the 149-year-old colonial law that banned gay sex, had been upheld by the Highest Court of Law of India saying that amending or repealing Section 377 should be a matter left to Parliament, not the judiciary.
For many gays and lesbian Indians the Supreme Court verdict will mean that they become vulnerable to harassment all over again. In India, domestic partnership, adoption – all the things that straight people take for granted – cannot be even discussed and talked about by activists because Section 377 makes it illegal to engage in gay sex. Under the colonial law, men could be jailed for 10 years for having sex with men, an act which was classed as an ‘unnatural offence’ along with paedophilia and bestiality. How can one talk about rights when the legal framework makes you a criminal?
In 2001, on behalf of the Naz Foundation, and with the help of the legal charity called the Lawyer’s Collective, I began to put together public-interest litigation against Section 377. Apart from just coming out and shouting from the rooftops about our human rights, trying to change the law was the only thing we could do. The everyday harassment of gay men by police and thugs also strengthened my resolve to fight for their cause. Although gay men are rarely prosecuted under Section 377, they are often intimidated or exploited because of it.
Once, while I was coordinating the Naz Foundation’s ‘men who have sex with men’ programme, a whole group of men with whom I had been working were badly beaten up. A bunch of gay boys who were walking home from the support meeting were attacked by some street boys with iron bars and hockey sticks. Many of the boys I knew got their heads smashed that night and had to be taken to the hospital. We knew who did it. I wanted to make a police complaint but we could not because of the law. The police had a history of raiding groups who worked with gay men and of rounding up and arresting outreach workers. So we were afraid. The men who were beaten up were also afraid to speak out. They were not ready to own up to being gay publicly; they thought they would be criminalised. In the end we made no complaint.
My journey as a Gay Rights Activist
My journey to becoming a gay rights activist and legal victor began when, as an 11-year-old schoolboy in Delhi, I realised I was attracted to men. I was growing up surrounded by a ‘conspiracy of silence,’ in which nobody even spoke of the possibility of homosexuality. I would have been happy to hear something I could latch onto or fight with, but there was just silence – a mind numbing and suffocating silence. There was this hypocrisy – it is okay to do what you want to do in the bedroom but you do not talk about it in the living room. I found this appalling.
I got into gay activism in my early twenties. I realized that voicing my feelings openly on what I felt about the state of affairs began to heal the years of silence and oppression that I had faced as a gay boy growing up. But before I could go public, I had to tell my mother. After having kept my sexuality secret from family and friends for a decade I came out to my mum, whose matter of fact reply was such a delightful relief for me. She said simply, “So what?”
Most gay Indians do not have the privilege of being born to such liberal parents. After confiding in my family, I began working with gay organisations, starting with the Humsafar Trust in Mumbai and then the Naz Foundation in Delhi. I became a very open gay rights activist. I wrote a magazine column, I did training workshops and seminars, I was vociferous in the media, I organised protests and I did work with the National Human Rights Commission on the psychiatric mistreatment of homosexual patients by the medical fraternity.
Gay men are up to eight times more likely to contract HIV than the average Indian, and many groups lobbied for Section 377 to be overturned on the grounds that it pushes gay men underground, making them more vulnerable to HIV. The National AIDS Control Organization (NACO), the Indian government’s HIV/AIDS control body, came out against Section 377 in 2006, arguing that the law made HIV prevention more difficult. The then Health Minister of India Mr Anbumani Ramadoss and many AIDS organisations, including the India HIV/AIDS Alliance, where I now work as Director, also called for the law to be abolished in order to protect public health. Our consistent efforts did lead to some sweet victory (turned sour now once again) in that Section 377 was declared unconstitutional with respect to consensual sex between consenting adults by the Delhi High Court in July 2009.
Constitutional Morality And Public Morality
Constitutional morality had prevailed upon public morality but alas! it has been turned down once Social pressure from around the country, particularly in the big cities, has also grown hugely in the past few years opening the floodgates of demand for legal justice for gay men. Cities such as Delhi and Mumbai have held gay pride marches; young gay people and their families are being interviewed by journalists on primetime TV; Bollywood films now have gay characters. Bombay Dost, a gay magazine, has been re-launched and is no longer sold furtively wrapped in brown paper. This cultural shift gave us some degree of comfort to believe that the general population was ready for a social change of values. But there has been plenty of opposition too. Religious groups, leaders of the BJP (the Hindu nationalist party), and millions of ordinary Indians, especially those in rural areas, still find homosexuality unacceptable.
This social discrimination will be much harder to change now with the law upholding it, instead of denigrating it. In small towns of India it is still not very easy for people to reveal their sexual preference to their family. Even in Delhi most young gay men need guidance and support to come out. Many gay men succumb to the social pressure around them and keep their sexuality secret. When I was in my late teens, I asked a man I met at a cruising spot whether he would ever get married (to a woman). “I already am,” he replied, “Isn’t everyone?”
But despite these challenges, things can improve if we choose to believe in ourselves. Like I chose to come out and start working as a gay rights activist. I used the very stigma which tried to oppress gay men as a weapon to create my own life of freedom and also help several others along the way. Today I am not only a political activist working on sexuality issues but also a writer on the subject. My sexuality, a source of anxiety in my early years, has defined, quite successfully, who I am and what I have chosen to do with my life.
(Even as I write this piece, the government of India has moved the apex court on December 20, 2013 seeking a review of its ruling on Section 377 that criminalises homosexuality, saying that ruling falls foul of the principles of equality and liberty. Let us hope that right to personal choices is preserved).
Shaleen Rakesh serves as a Director at the India HIV/AIDS Alliance and writes for Citizen News Service (CNS). He initiated the fight against Section 377 of Indian Penal Code as the primary petitioner from the Naz Foundation (India) Trust in 2001