Out Of The Closets and Into the Courts: India’s Queer Community Awaits A Judicial Remedy

Participants wave rainbow flags during the Delhi pride parade, held on 29 November 2015. AP Photo /Tsering Topgyal
11 December, 2015

Exactly two years ago, on 11 December 2013, the Supreme Court of India reversed the Delhi High Court’s landmark 2009 decision to deem Section 377 of the Indian Penal Code, India’s colonial-era anti-sodomy law, unconstitutional. In its judgment, the Supreme Court noted that “only Parliament can change a law, not courts.”

With few other legislative avenues open for the legalisation of “acts of carnal intercourse against the order of nature,” the hopes of India’s queer activists rest upon a curative petition currently pending before the Supreme Court, which could reverse its 2013 decision. Currently, however, there is no clear timeline for a response from the court.

In the lead-up to Delhi’s eighth Queer Pride march, held on 29 November this year, its organisers were worried. They were unsure how the lack of any definitive legislative action would affect attendance. At a pre-Pride preparatory picnic held one week before the parade, 31-year-old Manak Matiyani, a member of the Delhi Queer Pride Organising Committee, said that the effect of the petition's status “could go either way. It could incite people to get out, because they’re angry.” But Matiyani also suggested that it might have had a more chilling effect, given the hostile political climate, and result in a muted turnout. “After the judgment, there’s been a lot of clampdowns supported by the government and government silence, particularly on issues of sexuality and sexual freedom.” The conservative tenor of the current government and supporters of the ruling party left Matiyani and other organisers anxious. “It is in the back of our minds,” he said, “What if the government doesn’t give permission, or the RSS shows up? Because it’s also criminal. We’re clearly challenging one of the laws that exists.” “But we’ve never had any violence at the Pride march,” he added.

This year proved to be no exception. A week later, on the day of the march, all permits were in place and no counter-protests were to be seen. But though the numbers were noticeably larger than at last year’s, and though the attendees were bedecked in a cornucopia of rainbows and gender-subverting attire, the mood seemed more reminiscent of a protest than of a celebration. As the parade wove its way down the government-approved route between Barakhamba Road and Jantar Mantar, the chants, a mix of Hindi and English, sounded intermittent and often half-hearted.

India’s queer community, it seemed to me, was holding its breath and waiting.

The curative petition—a mechanism devised by the Supreme Court in 2002, which allows it to revise an earlier decision that it thinks it has made in error—may present only a slim thread of hope. Only two such petitions have been favourably received by the Supreme Court in the thirteen years that this mechanism has existed. Though attorneys involved in India’s LGBTQ (Lesbian, Gay, Bisexual, Trans, Queer indentified) rights movement have not publically admitted that the curative petition seems to be a long shot, they are not oblivious to the remedy’s poor track record.

Anand Grover is a member and co-founder of the Lawyer’s Collective—a non-governmental organisation providing civil rights litigation services, known for its work on issues of HIV and homosexuality. Grover told me that he recognised that “curative petitions are very rarely heard” but that this particular petition may succeed on its merits. The petition holds that the Supreme Court opinion, which effectively delegates the issue of sexual freedoms to the legislative branch, misunderstands the role of the Supreme Court in Indian jurisprudence.

Grover argued that the court’s position on legislative review is“exactly why it is wrong. It is not correct for the court to abdicate responsibility for an issue relating to fundamental rights.” He went on to highlight the inconsistency in the Supreme Court’s treatment of gender and sexual minorities, pointing to the its 2014 ruling in favour of the National Legal Service Authority (NALSA), which guaranteed a number of civil liberties protections for transgender individuals. “These decisions are contrary to each other. The decision of NALSA was very important [for the curative petition].”

For many activists associated with the LGBTQ movement, however, the legal status of the petition is only a part of the broader ideas of social acceptance, civil rights, and ending the marginalisation of India’s queer communities. Many see the petition as a part of a larger conversation around the oppression of minorities in the country, one that may eventually both inform and be informed by the status of the petition.

Shreya Ila Anasuya, a 26-year-old writer and activist, sees the court cases and penal codes as reflections of the popular mood rather than determinants of it. “I’m very hopeful for widespread acceptance of queer sexuality, whatever happens with the litigation.”

Michael Creighton, a 49-year-old teacher and longtime Delhi resident, who came to the march with his wife and children (theirs was one of the few heterosexual families in attendance) told me that he saw the current court case as a temporary setback that is likely to be overtaken by shifting social tides. “Courts are influenced by a certain kind of public opinion,” Creighton said, before adding, “Judges will see this. It happened in the United States at some point.” Creighton believes that in the US, it was not only a legal fight, but also a situation in which judges realised that they did not want to “be the guy that was part of holding this up.”

Events such as Pride also have intrinsic value as a welcoming place in an often hostile city. “I’m here,” said Ila Anasuya, “because I feel very safe in these spaces, which is rare for queer people as well as women.” Ila Anasuya also added that the necessity to acknowledge the country’s diversity, and that the failure to do so contributes to an ongoing “rewriting of Indian history.”“I am here because I want to celebrate the diversity in our country in terms of gender and sexuality. We've had it for millennia,” she said, before adding, “I’m here because there’s a serious assault on diversity at the moment.”

Ila Anasuya’s view jibes with that of Dhrubo Jyoti, a 26-year-old activist and journalist who feels that it is intersecting identities and marginalisations that should be kept at the forefront of the movement. Jyoti spoke at Pride on the multiple intersecting deprivations faced by LGBTQ and Dalit individuals. In a later conversation held over the phone, Jyoti dispelled the notion that presenting a homogenous LGBT community was the most effective means of furthering its cause or expanding marginalised communities' access to civil and economic freedoms. “A lot of people who wanted to make a statement came to Delhi Pride. A lot of individuals who are very aware of the kind of intersectional issues that a lower-caste person and LGBT person brings, or a Muslim and LGBT person, or a disabled person and LGBT person brings. There was a conscious effort at inclusivity, but also this admission that LGBT people are not a monolith,” he told me.

For Jyoti, this diversity creates opportunities for solidarity. “I personally don’t believe that there is any ‘non-[LGBT] issue,’” he said. “These kind of multiple identities and the issues these multiple identities bring with them have become really important.”

While the movement’s visibility seems to be expanding, the parliament has remained largely unmoved. Finance Minister Arun Jaitley noted in a speech in late November that the verdict to uphold Section 377 was “not in accordance with evolving legal jurisprudence.” Jaitley’s predecessor, P Chidambram, who spoke right after him, echoed his remarks and characterised the 2009 high court ruling as “wonderful.” On the evening of the parade, Congress member of parliament Shashi Tharoor revealed in a tweet that he had submitted a private members’ bill to decriminalise consensual sex between adults of any gender. And although these recent remarks by senior leaders are laudable and may point to some change at the highest levels of both national parties, there are few signs that these changes have made their way to either party’s political base.

Indeed, the attitudes of the Bharatiya Janata Party towards sexual and gender minorities were frequently targeted at Pride as well. When I asked Ila Anasuya about the opposition to the BJP—the Congress, one notes, has hardly been proactive in protecting LGBTQ rights—she pointed to an extra-legislative hostility on the part of the ruling party. “They have used very targeted hate speech, writing about gay people as if they are paedophiles, and equating people who have same sex relationships to people who violate animals and children. That sort of discourse is absolutely unacceptable,” she declared. “There is a kind of false consciousness around this colonial-era law that is actually being made to look like it’s Indian culture, but it’s not.”

The lack of any definitive statements supporting the repeal of Section 377 at the lower levels from the political parties may mean that any attempt to address sexual liberties in the Lok Sabha is unlikely to succeed in the short term. “It can be done legislatively also,” Grover says, “but that is much more complicated route. That is a road that is difficult to travel.”

Given the judicial principle of stare decisis, in which previous court rulings set precedent through a build body of case law, another shot at judicial review of the Section 377 seems unlikely in the near future. This means that should the curative petition fail, activists will lack any legal remedy and will be forced to turn to legislative advocacy. And unlike in the case of the United States, where anti-gay laws were never applied centrally and a devolved federal structure allowed activists to work to change laws at the state and local level, there are few venues to chip away at the archaic law.

This does not deter hope, however. “When the Supreme Court refused to repeal 377 and brought its tyranny back,” Ila Anasuya continued, “they inadvertently opened a public conversation that’s going to cost them quite dearly. Because the more we talk about it, the more acceptance there is, the more it will be inevitable that Section 377 has no place in this country.”