Newsletter May - Aug 2009

After many years of the case being in the High Court, several months of it being argued (see Saheli Newsletter Sept-Dec 2008) and a long wait for the day of the judgement, many of us were justifiably anxious while in the court on July 2, 2009.

Pin drop silence, as the judges started reading out the judgement to a court full of lesbian, gay, bisexual, transgender and queer (LGBTQ) activists. “We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 B and 15 of the Constitution” ... a collective but muffled cry (shh... we are in court!) went up in the air as we all stood up, greeting this joyous and historical moment for queer rights in India.

And just like that, within minutes, Sec 377 of IPC was finally read down. Simply put, the judgement means that sexual activity between lesbian, gay, bi-sexual, transgender, queer and intersex people is no longer a criminal activity, as long as it happens between consenting adult partners above 18 years of age, in private.

Invoking the spirit of 'inclusiveness' from the Constitution of India, the vision of Nehru and Ambedkar, the judgment states “Those perceived by the majority as 'deviants' or 'different' are not on that score excluded or ostracised.”

Interestingly, this judgement also means that heterosexual people can finally legally enjoy the pleasures of non-procreative sex (Sec 377 also criminalised consensual private oral and anal sex between a man and a woman, married or not!).

Another critical aspect of the judgement is that it affirms Section 377 will continue to “govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors”, hence ensuring continued legal recourse against child sexual abuse.

The celebrations erupt. Soon after, phone calls, sms’es, hugs and kisses started 'flying around from friends and activists in other cities and countries. Choking with tears, screaming with joy, unable to find words - many had not expected to see this day in their lifetime.

Meanwhile, news about the judgement was evoking all kinds of reactions. Some felt emboldened to “come out” to family, friends, colleagues and the media, some got “married” to their lovers (Even though the judgement has done nothing to change the definition of marriage) and some jokingly sighed about the loss of ‘invisibility’!

A media explosion followed and the judgement made headlines in newspapers all over the world, with the majority of the press coverage hailing the High Court decision. Suddenly'! The taboo surrounding the word 'sex' had crumbled. Consensual sex. Non Consensual sex. Anal sex. Vaginal sex. Oral sex. Gay sex. These were topics of discussion on news channels, in homes and on the streets. Everything except lesbian sex, that is. Of course pictures of queer women were all over the papers but lesbian women and their lives were hardly ever the topic of discussion. Even the fall of Section 377 isn't enough to break the silence on female sexuality!

Also, since Section 377 continues to be the legislative tool in cases of child sexual abuse, we found that 'consent' with regard to sex suddenly ' became central to the public debate’. An issue that women's groups have for so long been trying to 'foreground in the context of control over women's bodies, forced marriage and rape.

The backlash begins. Of course, the nay-sayers were out there too. Discussions on the 'threat’ to the “good” Indian family' began almost immediately: “Oh my god, my son is going to become gay” was a common anxiety on TV tape tickers and news blurbs. And then, we witnessed with fascination, the coming together of religious leaders of all hues united in their repulsion and condemnation of homosexuality. Some claimed to have power to cure it, some said kindly, we 'shouldn't criminalise homosexuals' but they shouldn't do “it”, and some even said it was a threat to national security and stated at a joint press conference that they would take this case to the Supreme Court!

In a way, this coming together is understandable because LGBTQ rights, loves and lives do pose a threat to established family and societal norms. As feminists, we believe that this challenge to the status quo will force further discussions and help in moving towards a better society.

Astrologer Suresh Kaushal, the Apostolic Churches Alliance and yoga guru, Baba Ramdev did file Special Leave Petitions in the Supreme Court challenging the High Court judgment. The Supreme Court then asked the Government of India for its response to the High Court judgement (because the Health and the Home ministries had taken contradictory stands in the High Court). At the subsequent hearing on 20 July, 2009, the government had requested for and received 8 weeks more time to revert on the matter. Meanwhile, the Supreme Court has refused to stay the High Court judgment. So Sec 377 remains read Down Down Down! As we wait for the next hearing on 14 September 2009 we are aware that a die been cast and there will be no looking back.