Constitutional rights, sexual rights, and "morality" in India

In the aftermath of the recent rulings in India re-criminalising homosexuality, Poonam Joshi reports on the critical role that grassroots LGBTI activists play in building public support for LGBTI rights in Karnataka

Poonam Joshi
17 February 2014

Two hours out of Bangalore city in the southern Indian state of Karnataka, I travelled to witness the results of an experiment in LGBTI activism and alliance building. Local community members sat crowded on the floor of a stark concrete building housing a HIV/AIDS drop in clinic. As the room filled, a power cut plunged us into darkness, and the stories of those packed into the room unfolded one by one by the light of mobile phones.

Manjesh, a softly spoken, slightly built intersex man in his 30s introduced me to a group of transgender sex workers from his village. Manjesh had helped the sex workers to obtain identity cards and ration cards. For people living below the poverty line in India, these cards are critical for them to access Government welfare benefits and subsided food grains. For the transgender community getting hold of these identity cards is a torturous process with officials wrangling with the applicant over how to record their gender. The sex workers nodded vigorously in support of Manjesh and pulled out their ration cards to show me. Manjesh was now raising funds to open a school for the children of female born sex workers in his village.

Next was Kiran, a young transgender man in his late 20s, disabled by polio, who had fled home running away with his girlfriend following threats from her family.  He had not only resurrected the defunct HIV/ AIDS clinic we sat in, but built a disability rights network in the district. Kiran had brought with him albums of photographs documenting his work. The photographs of local politicians and functionaries stood out. Kiran– someone who because of his sexuality and disability would normally be on the margin of the margins – sat centre stage, able to use his dynamism and personal experience of discrimination to secure rights for others.

Manjesh and Kiran were two of four activists mentored by Aneka, a local LGBTI organisation as part of a fellowship program intended to raise the visibility of working class LGBTI persons, and enable them to build constituencies of public support for sexual rights. The need for that public support has never been so critical in the aftermath of recent legal developments.

In 2009 the Delhi High Court in India ruled that the inclusion of consensual same sex acts under Section 377 of the Indian Penal Code 1861, which criminalizes anal and oral sex, was unconstitutional. The effect of the judgment was to de-criminalise homosexuality. However on December 11th 2013, the Supreme Court of India overturned the 2009 ruling,  re-criminalising homosexuality. Despite petitions from the Government of India and human rights organizations requesting the Supreme Court to review its judgment, the apex court struck down the requests on 29th January 2014.

For LGBTI activists like Manjesh and Kiran the Supreme Court decisions are a devastating blow, but also a call to arms.

Life under 377

Activists in Karnataka and across India now fear a return to the situation prior to the 2009 judgment, where the police, medical establishment, government officials and employers openly discriminated against  the LGBTI population with impunity. For the majority of India’s LGBTi community, the intersection of class, caste and sexual identity meant lives of stigmatization, violence, poverty, poor health and educational and economic exclusion.

Aneka’s director, Shubha Chacko, an academic and activist told me about her experience prior to 2009 in Karnataka with LGBTI rights organisation, Sangama. In 2004 the organisation supported Kokila, a 21-year-old hijra (male born eunuch) who was gang raped.  Shubha told me that prior to this incident LGBTI persons had “often been silent –fearful of further reprisal if they raised their voice”. Supported by Sangama, Kokila reported the rape to the police only to be “further sexually and physically abused, and humiliated at the police station for daring to complain”.  Shubha also described how attacks were not just limited to the LGBTi persons. In 2008 the Police Commissioner of Bangalore took up a ruthless drive to “purge the city” of hijras, which extended to the assault and the framing of false criminal cases against Sangama staff and allies.

For years Section 377 also severely hampered HIV/AIDS public health efforts to address the growing epidemic, by driving high-risk activities underground and making it extremely difficult to get critical information and services to those most at risk of contracting HIV. It was in response to this public health crisis that the Delhi based HIV/ AIDS organization, the Naz Foundation, filed the petition before the Delhi High Court arguing that Section 377 violated the rights of the MSM (men who have sex with men). In the 2009 landmark judgment in Naz Foundation v. NCT of Delhi, the Delhi High Court found Section 377 to be unconstitutional on the grounds that it breached the rights of LGBTI people to equality, dignity and privacy. The judgment acknowledged that although there had not been a high volume of prosecutions under Section 377, LGBTI people were treated as "unapprehended felons" - stigmatising their behaviour and making them vulnerable to discrimination, harassment, blackmail and extortion.

Impact of the 2009 ruling

Shubha believes the Kokila cases and 2008 attacks were a “turning point” for the movement in Bangalore, which stepped up its efforts to challenge violence and seek a repeal of Section 377.  In the 2009 judgment they saw the opening of a space where “policy makers started become more open about the issue,  more LGBTI groups emerged on campus and within corporate bodies, other movements and the general public became more accepting, and overall the environment of tolerance grew.”

Sangama moved beyond service provision and began, with Aneka, to support emerging and established groups representing LGBTI people as they built and led their own movements and demanded their own rights. There are now seven membership groups and networks across Karnataka and Kerala, including the Karnataka Sexual Minorities Forum, whose members ensure that program delivery of all health services to sexual minorities in the state is in compliance with human rights standards

In spite of progress in some areas, the response from the state level government authorities to the efforts of these LGBTI activists has been ambivalent since the 2009 ruling. In 2010 the Karnataka State Government issued a landmark order extending welfare benefits to transgender persons and employment training, a hugely important development given the economic exclusion and limited livelihood options available to transgender women.  However, in 2013 the same administration passed an amendment to the penal code in Karnataka, which gave the police powers to keep a register of all male to female transgender persons and monitor their activities. 

Karnataka was also the site of the largest ever arrest of gay men post Indian independence, with fourteen men being arrested and charged under multiple offences including Section 377 in the city of Hassan on 3rd November 2013. The suspects were subjected to night raids and media coverage which outed the men and have left their families attacked and vilified. At the time lawyers and activists queried how the defendants could be charged under Section 377, but following the Supreme Court decision in December those queries are now redundant.

LGBTI activists viewed the Hassan arrests as a clear sign to the LGBTI community that “morality” still remains more important than rights. This was also the message of the Supreme Court judgment on December 11th as it set aside the 2009 Delhi High Court judgment. The Supreme Court ruled that there was insufficient evidence to support the contention that homosexuals were being discriminated against in society or by the State, and that even if there is evidence of blackmail, harassment and torture of homosexuals, the Court held that misuse of Section 377 by the police was not a factor that should be considered in holding it to be unconstitutional. It observed that the LGBTI community constitutes only a "minuscule fraction" of the country's population, and referred to the rights of LGBTI persons as “so called rights”. Ultimately the Supreme Court placed the responsibility for decriminalizing homosexuality onto the Indian parliament, abdicating the Court's responsibility to uphold constitutional rights.

The chances that the Indian parliament will right the wrongs of the Supreme Court are slim. The petitioners responsible for requesting an appeal of the Delhi High were supporters of the Hindu right wing Bharatiya Janata Party (BJP). In December 2013, the BJP’s president, Rajnath Singh told the press, “homosexuality is an unnatural act and cannot be supported.” The BJP is widely tipped to win the national elections scheduled for May this year, and human rights activists anticipate a shrinking space for minority rights under their rule.

The future

LGBTI activists now fear a backlash. But at the same time they have been buoyed by the levels of public support, visible in the mass street protests that took place in Delhi, Mumbai, Bangalore and Kolkota that indicate that the Supreme Court and BJP are out of kilter with public opinion. This public support has come about as the result of years of work by LGBTI activists like Aneka in building alliances with other human rights movements and the communities in which they live. Politicians have advised activists that there will only be a prospect for reform if they can demonstrate wide public support from the grassroots upwards for LGBTI rights. Aneka now plans to launch the Solidarity Fund, which will provide small grants to emerging groups and activists working on sexual rights in southern India and Orissa. Backing activists, like Manjesh and Kiran, may be the best strategy available for building the public pressure needed to convince the Indian Parliament to finally recognise LGBTi persons as citizens entitled to constitutional rights.







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