Here in California, both advocates for and against are calling it the second biggest battle after the Presidential elections on November 4: the fate of Proposition 8 on the ballot, or the move to ban gay marriages. In June this year, same-sex marriages were made legal in California (the second state after Massachusetts, and then Connecticut followed); over 11,000 couples have got married in the few months since. In fact, pioneering lesbian rights activist, Del Martin, died in August at the age of 87, after having married Phyllis Lyon, her companion of over 55 years, on June 16, the first day of legalisation. Sexuality rights activists are worried that well deserved celebrations in June are starting to feel somewhat premature: proposition 8 is the first time an attempt is being made to eliminate a civil right already achieved.
Back home in India, an even more fundamental – and equally critical – battle is being fought over Section 377, the section of the 1861 Indian Penal Code that criminalises ‘unnatural sex’. Ironically, the British – under whose reign the Indian Penal Code was created in pre-independent India – rejected such criminalisation in 1967. And various scholars, including Ruth Vanita and Saleem Kidwai in Same-Sex Love in India, have demonstrated fairly unequivocally that same-sex love and relationships have existed and been represented in Indian art and literature for over two thousand years.
In 2002, the Naz Foundation (India) filed a Public Interest Litigation in the Delhi High Court to challenge Section 377, with growing support from across the country. In recent hearings on the PIL, the Additional Solicitor General PP Malhotra has sounded more than mildly Victorian himself while trying to defend the section against incisive judicial questioning: “Gay sex is against the order of the nature. We will disturb the nature by allowing them to do so. In the compelling circumstances the State has to take the help of the law to maintain the public morality.” The government’s stand itself is somewhat confused: the Ministry of Health believes that legalising homosexuality would help in its efforts to combat HIV/AIDS, while the Ministry of Law is against it on ‘moral’ grounds.
Last week, over 30 Rhodes Scholars from India wrote to the Prime Minister, Dr. Manmohan Singh – who has often served on the Selection Committee for the Rhodes Trust – and asked him to repeal Section 377. In the letter, we said:
Ever since the prestigious Rhodes Scholarships were first given to Indian students in 1947, its recipients have contributed in many different ways to the progress of India, in education, the civil service, science, and business. We, the undersigned, belong to this diverse community of Indian Rhodes Scholars but write in our individual capacity as Indian citizens with a commitment to public service and the fundamental principles of the Indian constitution — liberty, equality, justice, and the dignity of the individual. We believe that it is clear what these principles demand of us today: to join the growing body of concerned citizens that calls for the decriminalisation of consensual sex between adults of the same sex by the reading down of Section 377 of the Indian Penal Code.
As the historic case over the constitutionality of Section 377 now awaits the attention of the Delhi High Court, we write to register our profound disagreement with the language of the Additional Solicitor General P. P. Malhotra, who, in articulating the government’s stance, has argued that reading down the section could ‘open the floodgates for delinquent behaviour and be misconstrued as providing unbridled licence for homosexual acts’. He has argued, in addition, that strong social disapproval and the ‘right to health of society’ is sufficient reason to justify the treatment of homosexuals as criminals.
The health of our society, our democracy, and our polity, requires that we recognise the historic nature of this moment. Section 377 is a colonial relic, an imposition of un-Indian Victorian attitudes towards human sexuality that even the United Kingdom rejected in 1967. The government today has the unique chance to extend the fundamental right to equality and freedom to Indians who have long been discriminated against. This discrimination is real and manifests itself in police arrests, the threat of blackmail, and brutal violence, among other things, relegating India’s sexual minorities to second-class citizenship. We recall the courage of earlier governments in putting principle above immediate popularity in fighting for an end to institutionalised caste- and gender-based discrimination. We urge this government, a government committed to the cause of social and political justice, to seize the moment and make the historic decision to end discrimination on the basis of sexual orientation.
The full text of the letter is here. The Telegraph reported that a couple of days after the delivery of the letter, the Prime Minister asked the Ministers of Health and Law to “sit together”, and “sort out” the matter:
Singh’s directive to his colleagues came two days after 30-odd Rhodes scholars from India wrote to him requesting “an end to a law” that they said went “not only against fundamental human rights” but also worked “sharply against the enhancement of human freedoms”.
Earlier this year in an article in Frontline, Rakesh Shukla of Voices Against 377 said: “The petition is important but not enough. We need to continue to lobby with political parties, the legal fraternity, the police and mental health professionals and to raise awareness among the public.” This is absolutely true; repealing Section 377 is not going to ensure dignity and security for hijras, kothis, lesbians or gays in India, but it is an urgently needed first step, and our government needs to take it.
Image courtesy Sangama.