The Argument

India's social and physical landscape continues to weave cultures and sub-cultures. It is the world's largest democracy and quite remarkably, a world within a world - always in a state of flux. In this land of changing perceptions, the social understanding of human sexuality too has seen marked shifts from pre-colonial era to the present. During the pre-colonial times, homosexual acts and relationships were not just tolerated but also tastefully depicted and discussed. Today, they are being frowned upon and tagged as illegal thanks to a Victorian piece of legislation: the Sec. 377 of the IPC.

I have always wondered how long before the country once again recognizes, acknowledges and legalizes same-sex bonding between consenting adults. While the Delhi HC is currently deliberating the appeal for the "reading down" of this draconian law, V. Doctor, a noted journalist and gay rights activist, shares his knowledge of the legal tangle and the implications of either/or verdict for queer individuals in the country.

Here's the excerpt.

"1. When should we expect the verdict of the High Court (HC)?

Any day now. We don’t know for sure because the HC will only let us know the day before that they are posting a decision. So it depends on how long the judges take to do their decision. The arguments have been thorough, this is quite a high profile case and the judges are known to be independent and conscientious, so a decision should be due soon. But we don’t know when.

2. If it is positive and welcomes the requests of the associations what effects will it have?

Strictly speaking the decision, whatever it is, will be a limited one - it will be limited to the state of Delhi, and will probably also be limited in time too, because it will almost definitely be appealed to the Supreme Court (SC) for a final decision. If it is positive then our opponents who include an AIDS denial group and a right wing nationalist, possibly supported by Home Ministry, will almost definitely appeal it to the SC, which could apply a stay order. If it is negative, the queer rights groups could appeal it (but we haven’t really got a firm strategy for this yet).

But this is technical. If we win it will be a really big symbolic win, because it will be the first time a really high court in India is pronouncing on the subject of homosexuality. Also, among the HCs in India, the decisions of the Delhi, Bombay and Chennai HCs are often given particular importance because they are particularly well respected courts. The decision will probably not be binding on other courts, but it will send a strong signal to the legal community on the direction that queer rights in India should take.

We already have evidence of how this case is affecting the law, even before it is decided. About a year or two ago, a young man called D. Hope was accused of violating this law in Goa. The HC of Goa gave him bail on the grounds that the fact that this case was being fought showed that attitudes towards homosexuality are changing in India.

3. Will the crime of homosexuality as stated in article 377 be abolished in all of India?

As I stated, no. The decision will be limited to Delhi, but its effect will be felt across India. Also, I should make it clear we are not asking for Sec. 377 to go, but are only asking for a very narrow change - we are asking to courts to declare that it does not apply to consenting adults. This is because the law still has use in cases of child sex abuse and male rape. Ideally there should be a new law to deal with these, but in its absence we hope the courts will use their power to exclude consenting adults from this law.

4. How do you think the majority of the Indian population feels about lgbt people’s civil rights?

I don’t think the majority of India’s population feels anything about LGBT people, positive or negative. I think there is less overt homophobia here than in Europe and certainly the US, though that doesn’t necessarily translate into automatic acceptance.

Part of the homophobia is simply due to less visibility and understanding of homosexuality - so once that increases, there will be more homophobia. There is awareness of forms of alternate sexuality that have long been part of Indian society, like the hijra community. There is acceptance of this, but it comes with very definite prejudices some of which are extended to the gay community.

In some cases we have leapfrogged a bit, so elite groups, for example, like those in Bollywood or the media, are often gay friendly because they’ve picked it up from abroad. But its a form of acceptance that comes with its own stereotypes that can be a problem. Also, there is a general fear of people being too open - you often hear parents telling their kids that they are OK with them being gay, but they don’t want them to march on the streets for it.

I think there is some truth in that Indian society tends to be fairly tolerant, though its easy to make too much of this. But homophobia in its formalized form is a Western imposition on Indian society in the form of Sec. 377, and I do think, optimistically, that once it goes, progress in India will be rapid."

(...)

[via Puta: visit the website to read the complete interview. Interview by M. Cecconi and Translations by M. Cioni and T. Kutinjac]. Emphasis added by the author.

Although V. Doctor provides a valuable insight, I am not convinced by his claim that increased visibility increases homophobia in society. His is an overly simplistic argument and one that describes visibility as a monolithic representation of sexuality, negative enough to induce fear and disgust in society (More on this to follow).