India's gay community scrambling after court decision recriminalises homosexuality

After five years of reform, homosexuals face renewed threat of jail

Andrew Buncombe
Sunday 23 February 2014 01:00 GMT
An activist during protests in Kolkata late last year, when the Supreme Court first decided to reinstate a 19th-century law criminalising homosexuality
An activist during protests in Kolkata late last year, when the Supreme Court first decided to reinstate a 19th-century law criminalising homosexuality

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Louise Thomas

Louise Thomas


Back in 2009, Lesley Esteves was dancing in the streets after judges in Delhi decriminalised homosexuality. When the Delhi High Court suspended the draconian Section 377 of the Indian penal code which dated from the days of British rule, India’s lesbian, gay, bisexual and transgender community thought there was no turning back.

Five years on the euphoria has gone. In December, the country’s highest court overturned the lower court’s ruling, once again making gay sex a crime punishable by up to ten years in jail and putting tens of millions of Indians at risk of prosecution or harassment. Last month, that court – which had said gay people in India were just a “minuscule minority” – upheld its decision against an appeal and said it was up to the government to change the law.

But there is little chance for that. While senior figures of the ruling Congress party supported repealing Section 377, the leadership of the main opposition party, which most analysts believe is set to secure power in an upcoming election, do not. As it was, the current parliament held its last session on Friday; it could be years before a new parliament amends the law.

“It was a shock for the whole world, not just for India,” Ms Esteves, who works as a journalist, said of the Supreme Court ruling. “Amidst the euphoria of 2009, I did not imagine the possibility that one day, the Supreme Court would brutally set the Delhi High Court judgment aside and dismiss India’s LGBT people. It’s hard to imagine words more out of sync with the inclusive and progressive Indian constitution.”

The law which criminalises homosexual behaviour was drafted by Lord Macaulay in 1860 and states that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment”.

Campaigners have long complained that while that while there have been few prosecutions during the past 20 years, the law has been used to harass and blackmail gay men. Driving homosexuality underground would make it far harder to counter Aids and provide homosexual men with treatment.

Furthermore, the law is at odds with various articles in India’s constitution which supposedly guarantee the right to life and personal liberty, equality, and which prohibit discrimination.

The Supreme Court decision triggered outcry across India and beyond its borders. The UN’s most senior human rights, official, Navi Pillay, said the decision violated international law and marked a “significant step backwards for India”.

People questioned how the court decision sat with a nation that had long promoted itself as a bastion of tolerance and diversity. While the gay rights movement remains in its infancy, its members believed they were on the right side of history.

BJP’s Narenda Modi and Rajnath Singh
BJP’s Narenda Modi and Rajnath Singh

To protest the decision, hundreds of activists and supporters donned black armbands protested in India’s biggest cities. Campaigners also urged people to write to the judges of the Supreme Court, expressing their feelings.

L Ramakrishnan, who works for a public health NGO and who volunteers with Orinam, a Chennai-based rights collective which organised the campaign, said they had received letters in English, Hindi, Bengali, Kannada, Gujarati, Telugu and Tamil. “We wanted to show how this decision impacted people without it getting lost in legal jargon,” he said.

He said many young people had taken the decision to come out in the aftermath of the 2009 decision by the Delhi High Court. Now they found themselves criminalised, he said.

Campaigners believe the decision will put up to 75m Indians at right of harassment. The threat of discrimination and harassment is particularly high in the country’s more conservative smaller towns and villages.

They also believe its significance reaches beyond India. Following the decision, both Uganda and Nigeria signed into law harsh anti-gay legislation and campaigners believe the move was influenced by the decision of the Indian court.

Activists will file a fresh “curative” appeal to the Supreme Court. Yet they are not optimistic of success. “I think we have a good case but we have bad judges,” said Anand Grover of the Delhi-based Lawyers Collective, one of those who has been leading the legal fight.

Regression: The Congress Party’s Sonia Gandhi
Regression: The Congress Party’s Sonia Gandhi

Repealing the law may be even more problematic. In the aftermath of December 11 decision by the supreme court, Sonia Gandhi and her son Rahul, who heads the ruling Congress party, spoke out against the turn of events and the government filed its own appeal. “These are matters of personal freedom. The country is known for freedom of expression,” said Mr Gandhi.

But India is just months away from a general election and few observers expect the Congress party to be returned to power. Most believe the momentum is with the opposition Bharatiya Janata Party (BJP) and its prime ministerial candidate Narendra Modi.

In the aftermath of the Supreme Court decision that re-criminalised homosexuality, the president of the Hindu nationalist BJP, Rajnath Singh, told Kolkata’s The Telegraph newspaper that it supported keeping Section 377. “We believe that homosexuality is an unnatural act and cannot be supported,” he said.

Asked whether this remained the BJP’s position, party spokesman Prakash Javadekar told The Independent on Sunday: “The courts are still considering this. Then we will look at it.”

In a briefing paper, the British charity Stonewall drew attention to the impending election and its implications for altering the law. It said it was “very unlikely for a legislative solution to be found in the near future”.

Campaigners in India insist they will not deterred. Ms Esteves, who had been present for the historic judgement in 2009, said the day after the supreme court judgment she and others had been filled by new determination.

“[We decided] we would keep raising our voices across the length of India, that we would raise them together and so loud that not even the supreme court would be able to claim that they can’t hear us,” she said.

And in Hyderabad, activists will on Sunday march in the city’s second gay pride event. One of the organisers, Sai Tejo, a 19-year-old sociology student, said he believed people would make a special effort to support the event in the aftermath of the Supreme Court ruling.

“One thing the judgement did was to bring the topic out into the open and put it on the agenda of ordinary people,” he said. “One thing’s for sure, no-one is going back in the closet. It means people will fight it out.”

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