It is March 2012, and the Indian Supreme Court is hearing arguments in Koushal v Naz, the case that will decide whether millions of Indian adults should be condemned to criminality for having sex with other adults to whom they are attracted or whom they love. An almost-Bollywood moment occurs in court (but eventually only in my head).
I am sitting in the fourth row on the extreme left of the courtroom. Arguments for striking down this criminalisation prescribed by Section 377 of the Indian Penal Code are being presented. The court interrupts the arguing lawyer and makes an observation: that it is unaware of anyone who is homosexual, apart from some historical figures who have been mentioned and an esteemed Australian judge. This despite several eloquent testimonies of queer people being placed before the court of how criminalisation gravely affects their lives.
The court’s decision, issued a whole 22 months later reveals this line of thought to be thus: We don’t know homosexual people, and if they do exist they are few and far between; given their tiny presence their concerns don’t merit the time of the apex constitutional court of India; let them meet their fate elsewhere i.e. Parliament. In this most tragic, and inequitable of judgments the Indian Supreme Court deemed homosexuals unworthy of its assistance, being that they were merely a “minuscule fraction”.
But back to the almost-Bollywood moment: When this bewildering line of pondering is being articulated I look around the room, and am about to tap the shoulder of a queer lawyer sitting in front of me – visualising that filmi instant when the few dozen of us queers in the courtroom (many of us in our lawyers gowns) stand up one by one, to show that here we are, always ready to be counted.
The perils of reality
I’ve asked myself why I hesitated that day. I did so because this was real life, not some fantastical Bollywood movie; this was the gravitas of my nation’s court, an institution I greatly respected, not some film set where all kinds of flourishes are scripted; and, because this was about me and my miniscule fraction leading full and free lives – the moments in court were delicate, vital, precious. What could be perceived as grandstanding may only make things worse. So: button up and keep sitting, Vivek! Of course, little did I know that in December 2013 my minuscule fraction and I would be condemned to the straitjacket of criminalisation all over again.
Now, let’s be clear about a couple of things related to “minuscule fractions”. First, and less important – how minuscule a fraction are we homos? Conservative estimates would place us at 2% of any population. In India that’s a delightful 2.5 crores who are potentially criminal for indulging in sexual intercourse with other adults of the same sex, as per the perverse Section 377 of the Indian Penal Code. And, that’s not counting the many crores of heterosexual people who enjoy non-procreative sex, thereby being covered by the same ridiculous law. Yet, even if we only count the homos among us, it will include a colourful cross-section of society – from captains of industry, actors, rickshaw drivers and film producers to doctors, tailors, carpenters, and agriculturists; from homemakers, journalists and athletes to lawmakers, judges, plumbers and domestic workers.
Second, some foundational civics: in a plural democracy how does it make a difference whether one is a minuscule (or large) fraction? Unless India is a tyranny, are not all her people assured of fundamental rights? And, although a democracy works through political will exercised through majority rule, is that a democracy’s sole trait? Nations that profess democracy through the fig leaf of free elections and majority will are tyrannies by another name. A real democracy is one that forestalls tyranny by wedding majority rule with the assurance of fundamental rights for all, including for all fractions, miniscule or not. These rights can only be restricted if their exercise causes harm to others. That’s the plainspeak of the Indian Constitution.
Also, about causing harm: no matter what spurious sadhus might say or uninformed mischief-makers might claim – of “curing” homosexuality through yoga, or the rampant child sex abuse that will engulf India or the family structures that will collapse – there is absolutely no evidence that the decriminalisation of homosexual sex between consenting adults will have any ill-effects on society. It hasn’t done so wherever such law reform has taken place, and in the four years between 2009 and 2013 that it was decriminalised in India it only brought great relief, freedom and a sense of personhood to millions of individuals and families. Other than loss of izzat, I don’t know of any harm that adults involved in homosexual sex can possibly cause to other persons, families, communities or society. And, if loss of izzat is reason enough then maybe we should criminalise almost all human behaviour.
On the other hand, I do know of the great harm that 377 has caused in many people’s lives. The media has covered stories of suicide by and abuse, extortion and violence against queer people over the years. But this is the tip of the iceberg, and these tragedies have seen an upswing since the pitiful decision in Koushal. On the first anniversary of the judgment, at a meeting held in Delhi to present firsthand accounts of this hate and sadness, the testimonies were heart-rending – of families shunning members, parents threatening children, public violence and police abuse and extortion. The words “beaten”, “assaulted”, “raped”, “banished” were constantly uttered.
When MPs who bore witness to these moving accounts were asked to walk the talk of support that they had professed, the response was stock – that Indian society needed to be ready before law reform could be contemplated. That is humbug. First, sometimes it is law reform that precipitates social change. And, second, there is nothing to suggest that Indian society is not ready for the removal of 377. You ask people if their son, daughter, brother or sister, friend or colleague should be jailed for acting on their homosexual attractions, and I’m convinced you’ll get a resounding “no”.
When the curative petition comes before the Supreme Court on February 2, it is time for the honourable judges to imagine themselves in their roles as fathers, mothers, siblings, colleagues or friends, and ponder this question with all seriousness. Passing the buck to Parliament is not only an abdication of constitutional responsibility, but also unviable – we’ve just witnessed the phobia with which Shashi Tharoor’s bill to revoke 377 was summarily and insolently thrown out by the Lok Sabha.
Years ago, I’d written with confidence that with truth on our side, we queers will prevail. I am still convinced that chicanery and small-mindedness will only be stumbling blocks on that journey. This is written to once again stake a claim to be a full person in this land. It is also to signal on behalf of queer people that we will not back down in using all the constitutional tools available to us to be liberated. And, in that process, we will continue to stand up and be counted, creating Bollywood moments in courtrooms and anywhere the occasion calls for.
Vivek Divan is qualified in the law and queerness.