The five-judge bench of the Supreme Court of India’s ruling to decriminalise gay sex has been hailed as a landmark judgement and has brought victory to India’s LGBTQ activists and good cheer to the larger general community. The apex court has pronounced the anachronistic provisions of the Indian Penal Code’s Section 377 to be unconstitutional. The section, which was incorporated in the penal code in 1861 (or 157 years ago) during the British colonial rule and fashioned on Britain’s Buggery Act of 1533, outlaws sexual activities that are “against the order of nature”. Incidentally, Britain’s law, on which the Indian section is based, was repealed in 1967. In India, the battle against it has been on a long and twisted path that begun as early as in the late 1990s.
While it is true that there are very few arrests and convictions are rare under the contentious section, it is widely alleged in India’s LGBTQ community that the law enforcers frequently use it to harass, victimise and persecute homosexuals, which is often accompanied by extortion. It is an archaic law that ideally India’s legislators ought to do away with. But even if that doesn’t happen and the apex court decriminalises what consenting adults want to privately do with each other without violating anyone’s rights, it would a step in the right direction. But will it be enough? Probably not.
Homophobia is deeply rooted in Indian society. And most people who are not heterosexually oriented face the brunt of discrimination at work; at school and in college; and in doing the mundane thing of leading their quotidian lives. With rare exceptions, they find little support and understanding from their families and “coming out” for them is far more difficult than in many parts of the civilised world. Simple things such as renting an apartment or socialising become difficult, and sometimes, nearly insurmountable tasks that cannot be done without resorting to untruths and subterfuges. In schools and colleges, young people who are often discovering their homosexuality face discrimination and the instances of gay people feigning to be “straight” in order to be accepted is not rare. At workplaces, even those that are so-called enlightened environments, the discrimination can sometimes be subtle—snide remarks; innuendoes; and exclusion—but still deeply hurtful. The number of gay and lesbian people pressured into unhappy heterosexual marriages is not insubstantial.
In terms of their attitudes towards homosexuality, even those among India’s highly educated and economically well-off display perceptions and actions that could be half a century behind what is accepted behaviour in many other parts of the world. A woman manager with a degree from a top-notch Indian university passionately argued with me trying to defend her belief that gay men were indiscriminately promiscuous and unfaithful. In another instance, the affluent parents of a young teenager who had confided in his parents about his sexuality said they thought he’d contracted his “gayness” because he’d been befriending the wrong boys in school and that if he switched friends it might change him. Homosexuality remains a taboo subject in India, which almost invariably ignites discrimination, hatred and protests when it surfaces anywhere. Famously, in 1997, when Fire, one of the first Bollywood films to portray explicit homosexual relationships, was released, it met with violent protests by right-wing political groups.
There are no credible estimates of how many people are homosexual in India. According to figures submitted by the government to the Supreme Court in connection with the on-going hearings, the number is 2.5 million but that counts only those who’ve declared themselves officially. In reality, the number is likely to be far greater and estimates range from two to 13% of the country’s population of 1.3 billion. At the lowest of the range, it would mean that there are 26 million; at the highest it would mean nearly 170 million. The majority of India’s gay population exists in the closet for fear of discrimination and even many of those who face discrimination and are victimised choose to suffer silently in the absence of support.
India’s political parties have rarely come out in support of homosexuality and religious groups, notably those comprising the Hindu majority, have usually been vehemently against a sexual orientation that they classify as being vulgar, un-Indian, and unnatural. This is despite the fact that there is little in Hindu religious scriptures and other texts that condemns homosexuality. Decriminalising homosexuality is obviously a step in the right direction. A repealing of Section 377 would be better. But, if children are taught in school about the naturalness of a sexual orientation that is erroneously thought to be unnatural, that would be the best.