For Queer Dummies: Section 377 Ruling

"In order to understand where we are now, how the Indian population will respond to the debate and what future prospectives exist, [Pura. A queer invader] has asked Vikram Doctor [a journalist of The Economic Times and gay rights activist] to answer the following questions and he has kindly responded by email.

1. Vikram, when should we expect the verdict of the High Court?

Any day now. We don’t know for sure because the High Court 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 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 India’s Home Ministry, will almost definitely appeal it to the Supreme Court, 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 High Courts in India, the decisions of the Delhi, Bombay and Chennai High Courts 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 British man called Desmond Hope was accused of violating this law in Goa. The High Court 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 Section 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 that 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 Section 377, and I do think, optimistically, that once it goes, progress in India will be rapid.

5. For us Europeans it is difficult to understand Indian society: multi-ethnic, multi-religious, secular and democratic. They seem like unexplainable paradoxes. In what way will the quality of life improve for lgbt people in India?

But “multi-ethnic, multi-religious, secular and democratic” is a pretty good description of Europe itself, in its totality. India is easily understood in such terms - all you need to do is substitute a bureaucracy in Brussels for a bureaucracy in Delhi (we just don’t have a revolving Presidency!). So to extend the analogy a bit, life will definitely improve for people in some places, not as much for people in other places (Poland!) and be mediated by local cultural factors. There will be an overall improvement, but probably not as fast and as clear cut as journalists and activists would like. "

Read the rest of the Interview at Puta. A queer invader


Maurizio Cecconi said...

Thanks for bringing the interview
Maurizio Cecconi

sid said...

I'm very glad you posted this. I had no idea that a positive ruling would only legally effect Delhi! From what I hear though, Delhi is an influential court in India and will likely pave the way for other courts to rule similarly... But I'm wondering, if section 377 is a national law, why did this case go to Delhi's court instead of the Supreme Court?

Riot Kitty said...

I have to tell you, as an American, it's really embarrassing that we are so behind the times. Although a few states allow same-sex marriage, most don't - I look forward to the day when we have full equality.

desidude269 said...

Why is this case taking so long? delhi court is bullshit. they know what is right thing to do, but don't want to be the first to turn things around

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