India’s gay community is hopeful as the country’s highest court prepares to deliver its ruling in a case that challenged a lower court’s landmark decision to decriminalise sexual relations among consenting same-sex adults.
However, legalising homosexuality may just be the first battle in a war that is likely to become far fiercer in the coming years.
A flutter of excitement ran through the LGBT (lesbian, gay, bisexual and transgender) community in July 2009, when the Delhi High Court struck down Section 377 of the Indian Penal Code, which criminalises “carnal intercourse against the order of nature.”
Ruling on a suit first filed in 2001 by the Naz Foundation, a Delhi-based non-governmental organisation, the court held that the section violated fundamental rights protected by India’s constitution.
Following initial indecision, the government decided not to appeal the ruling. Attorney General Goolamhussein Essaji Vahanvati said that criminalisation of consensual homosexual acts “was imposed upon Indian society due to the moral views of the British rulers”.
However, more than a dozen other groups rushed to the Supreme Court to challenge the overturning of Section 377. Fifteen days of hearings were held and in March 2012 the highest court reserved the appeal for judgement, which is still being awaited.
The Delhi High Court’s ruling has enhanced societal acceptance and reduced police harassment of the LGBT community, according to research conducted by Jindal Global Law School in early 2012.
Some of India’s top multinationals — including Goldman Sachs, Royal Bank of Scotland, Cisco, Dell, Novell, General Electric and Microsoft — have also developed policies to recognise LGBT inclusion in their organisations.
But the fact that the Supreme Court ruling is still pending speaks volumes about the sensitivity of the issue. A survey by India’s CNN-IBN television news channel in 2011 — more than two years after the Delhi court’s judgement — showed that 73% of Indians still believe that homosexuality should be illegal.
Unlike in some other Asian nations, where the visibility of LGBT people and marketing targeted to them is huge, activists say the community in India faces financial hardships.
“For cisgendered people who may not be out with respect to their sexual orientation, the issues of livelihood may not be a problem,” said Pallav Patankar, director of HIV programmes at Hamsafar Trust, a Mumbai-based male sexual health group. “But the situation is not very easy for the transgender community”, who find it difficult to get as well as sustain jobs.
While a Forbes study shows the potential for LGBT-targeted marketing in India, there are no such efforts in the country as yet, said Patankar.
Even if the Supreme Court upholds the Delhi ruling, LGBT activists have a long way to go, according to a 2012 report titled, “Charting a Programmatic Roadmap for Sexual Minority Groups in India”, by the World Bank in partnership with the Humsafar Trust and Delhi-based Amaltas Consulting.
“The main issues that confront the community are discrimination and violence, recognition of alternative family structures, adoption and property rights, and access to social security measures including identity documentation, welfare schemes, and education and health services,” the report states.
It suggests that LGBT groups have many demands, including enactment of an anti-discrimination law; review of the domestic violence law to address issues of violence between partners; review of the rape law; creation of boards or commissions to safeguard the interests of the community; amendments to adoption laws to accommodate live-in and same-sex couples; amendment to the Special Marriage Act to allow same-sex marriage, and so on.
Although the battle for and against LGBT rights in India is much more restrained than the culture war in the United States, the movement’s goals are not easily achievable.
Patankar identified the Muslim Personal Law Board, church associations and popular yoga guru Baba Ramdev as “well-known religious opponents” of LGBT rights in India.
There are other opponents, too. While India’s influential Hindu nationalist groups do not see eye to eye with Muslims and Christians on many issues, they share an opposition to homosexuality and same-sex marriage.
Opponents see homosexuality as something that is against nature and also causes the spread of Aids. India has about 2.5 million gays, of whom 7% are HIV-positive, according to a submission by the government to the Supreme Court. The overall number of HIV-infected people in India is just 0.2% of the population.
In their petition challenging the Delhi High Court order, the opponents also argued that if the natural order of the sexual act wasn’t a determining factor in the law, another group might come up with a demand to legalise polygamy, or to have the right to have sex with animals.
Regardless of what the Supreme Court decides, the LGBT movement in India is likely to grow, and with it the opposition to it. It won’t be surprising if the issue is politicised in the near future, given the involvement of Hindu nationalist groups.
The prospect of a proxy culture war cannot be ruled out. Some Indian LGBT groups are believed to be backed by American activists, even as some of their religious opponents might also be supported by conservative groups abroad.