ARVIND NARRAIN is a lawyer working with the Alternative Law Forum in Bangalore and has been associated with the LGBT (lesbian, gay, bisexual, transgender) movement for several years. He was part of a group that organised the first seminar on gay rights in an academic institution the National Law School of India University (NLSIU) in 1997. He is also associated with Voices Against 377, a consortium of non-governmental organisations (NGO) that has been working for the repeal of Section 377 of the Indian Penal Code.
What are the social implications of the Delhi High Court judgment striking down part of Section 377?
It is a historic judgment as right from 1860 through 50 years of the Indian Constitution the judiciary continued to follow the colonial justice of an earlier era and characterised homosexuals as despicable specimens of humanity. The right to equality, the right to dignity or the right to expression has never been seen fit to apply to lesbians, gays, bisexuals, hijras or others whose sexuality does not conform to the heterosexual mainstream. The judgment, for the first time, restored dignity and full moral citizenship to lesbian, gay, bisexual, transgender [LGBT] persons by ruling that Section 377 was inoperable against consenting sexual acts of same sex couples in private. For the first time, across the length and breadth of the country, LGBT persons have been rendered full citizens.
In the debate on the judgment on web portals, newspapers and other media, there is vast opposition to the decision, particularly on religious grounds. What do you say about this?
The response is quite simple. We all have different opinions about the kind of food we choose to eat, clothes we wear, etc. At no point in time does a religious stricture or injunction about these matters become the law of the land. Similarly, while we respect the right of religious leaders to hold other opinions on homosexuality, all we are saying is that religious opinion cannot become the criminal law of the land. That would be quite antithetical to secularism and really amount to imposing the views of one religion on the entire nation.
Having said that, it is important that we debate the impact of religious views or prejudices founded in religion on young people who find themselves deeply conflicted about their identity as being both gay and Christian or gay and Muslim. The debate on religion and sexuality must continue, and we are only glad that post this judgment we can engage in this debate with our hands untied.
Can you mention some major legal markers in the LGBTs struggle until the July 2 decision?
Possibly the first legal marker one can identify was the first protest against police harassment of gay people in 1993 in Delhi. Since that initial moment of coming out, there have been a series of public protests against arrests under Section 377, police harassment and torture carried out in all the major cities of India. Building on, and taking forward this more public profile of the community, Naz Foundation filed a petition to challenge Section 377. Voices Against Section 377 [a coalition of child rights, womens rights and LGBT groups] filed an intervention in the Naz petition, focussing on how LGBT rights were violated by the law.
There were also interventions filed by JACK [an AIDS denial group] and B.P. Singhal, arguing that the law should be retained. Since the history is so short, this would really be the most important landmark yet.
There is a perception that consensual sex among members of the same sex is a Western and elite concept. Can you comment on some of the cultural and class issues involved in the discussions surrounding the legitimising of consensual sex among adults?
This perception is not true at all. Homosexuality exists in all classes. The most visible part of the LGBT community is the hijra and kothi community, which is really at the intersections of the oppressions of caste, class, gender and sexuality. The visible imagery of the pride parades will testify to the sheer diversity of the LGBT community and how LGBT existence cuts across class.
The Union government looks like it is dithering on the issue after opposition from religious groups. In a democracy like India where religious groups are always perceived to be influential electorally, are you optimistic that the government will endorse the court decision?
We hope the Union government will pay heed to the judgment and take note of the fact that it invokes the founding fathers of the Indian nation, Jawaharlal Nehru and B.R. Ambedkar. If the Union of India is to be true to its history as the inheritor of the Independence struggle and craft out a meaning for independence suited to this age, then it cannot but endorse the decision. The logic of the High Court is impeccable; the case against Section 377 has been proved through close and cogent argumentation. If the Union of India is to be true both to its own history, sensitive to logic and solicitous of rights, it will not go against the decision. One hopes that wise counsel does indeed prevail.