Indian court recognizes buggery as a fundamental right

July 2, 2009, will go down in the history of free Indiaas the day on which the gays won an important legal battle. The legality of Section 377 of the Indian Penal Code that treats homosexuality as a crime was challenged in the Delhi High Court by Naz Foundation, an NGO that supports gay rights. The high court on this day gave an eminently sensible ruling that decriminalized same-sex relationship between consenting adults.

Most TV news channels went beyond breaking the news by claiming that the court had legalized homosexuality. The court has done nothing of the sort. It has merely taken the sting out of an outdated law by recognizing the rights of same-sex adults to a consensual relationship in private.

The euphoria among lesbians, gays, bisexuals and transgender individuals (LGBT) is understandable. The verdict is in line with the global trend against victimizing LGBTs for violating social, cultural and religious taboos. The media generated noise, nevertheless, hides an inconvenient truth. India does not have a history of homosexuals being punished by the state. The din creates the false impression that India too is among the countries where gays are victimized.

Yes, gay and lesbian relationships are still treated with contempt by mainstream India. Passive homosexuality among men is considered a bigger sin. Such men are called “gaandoo” (those who lends his arse) and are often treated with contempt boarding on cruelty. A “gaandoo” is a “gaandoo”. He shall continue to be an object of derision and popular ridicule.

A man who cannot fight his own battles is a “gaandoo”. A man who cannot protect his family or his woman is a “gaandoo”. Indian society is indeed harsh on people who lend their arse. On the flip side is a strange mixture of open revulsion and secret admiration for “launday baaz” (hunters of boys). The verdict is not going to change social attitudes in India to homosexuality.

The law that was challenged itself was introduced by the British nearly 150 years ago. It reflected the same values which saw Oscar WildeOscar Wilde being humiliated and punished for talking openly about “the love that dare not speak its name”. The law reflected rigid Christian values against homosexuality.

There are a countless number of British era redundant laws the central government has never thought of repealing. Section 377 of the IPC is one of them. The law, in spite of its harsh language and harsher provisions, was rarely used in free India to punish same-sex relationship among consenting adults. One can always spot a vindictive cop catching two consenting adults in the act and throwing them in the cleaners. That is true of any law that tries to control human conduct.

According to a report in The Hindustan Times, one of India’s leading English dailies, most cases under Section 377 are of child abuse. In May a young Muslim cleric was arrested in Delhifor sodomizing a 10-year-old boy. Section 377 will continue to protect minor boys and girls and unwilling adults from LGBT predators. Child rights activists point out this is the only section for dealing with adults who sexually abuse children.

What the verdict has done is give homosexuals the right not lead a secretive life anymore. But make no mistake; it does not give them the right to make such public nuisance of themselves by open display of affection as they did shortly after the judgment. Since the verdict is based on the interpretation of the Constitution it shall apply across the country according to a 2004 Supreme Court ruling.

However, one point needs to be re-emphasized. The Delhi High Court has not legalized their conduct. They, as of today, do not have such legal, religious and social rights as married heterosexual couples have.

Married heterosexual couples have the right to legal redress in the event of disputes over share in property or custody of children or any other issue. The present verdict does not give LGBTs similar rights. An aggrieved spouse in a legal heterosexual relationship if denied sex has the option to seek the help of the judiciary for restitution of conjugal rights. The court verdict has not granted this important right to gay couples.

Nevertheless the gays in India have absolute political rights. They have the right to vote and the right to contest. In several Indian states eunuchs have won elections. If the fact of out-of-closet gays winning assembly elections does not prove their general acceptance by the highly flexible Indian electorate, what does?

Not surprisingly religious groups have not welcomed the verdict. Of course, their views on the issue should not carry much weight because of their hypocritical conduct. Homosexuality is considered a sin by all mainstream religions. Yet reports of clerics themselves indulging in homosexual acts, mostly with children, are not a whispered secret.

Unhappily religious groups have a nuisance value which the party in power in India seldom ignores. The Union Government had, perhaps, sensed the mood. A day after newspapers and news channels reported that the law against homosexuality may be repealed the government went into denial.

If we look at global history of homosexuality we shall find that most draconian laws for dealing with gays and lesbians originated in the Christian dominated West. The current brouhaha, if we care to put our ears to the ground, has come from the country where most rights are first trampled upon before the state wakes up to have them enforced across the globe. The history of gay rights is no different.

Historically acts of homosexuality became common among communities which were constantly at war, or followed a code of strict segregation of sexes. In boys schools it is not uncommon for seniors to bugger kids from the junior sections. That is why discerning parents don’t put their sons in junior school hostels. In sociological terms experimenting with homosexuality is part of growing up. Most boys and girls grow out of this same-sex obsession and settle down to normal, healthy lives. Some get hooked to the different experience. They are the ones who take out queer parades and generally make a nuisance of themselves.

Migration by men in search of employment makes them miss the comfort of their homes. For sex they either visit prostitutes or become homosexuals. These gay groups in the formative stages operate more or less as secret societies, sworn to a code of silence.

World War II played a critical role in the evolution of what we now recognise as the gay movement. According “Milestones in the Gay Rights Movement”, Pat Bond was, perhaps, the first woman who after military service decided to lead a lesbian life in San Francisco rather than return to her home in Iowa.

The government reacted harshly to such incidents. Those who wore their homosexuality on their sleeves were thrown out of government jobs in the USA. In 1953 President Dwight D Eisenhower issued an executive order banning gay men and lesbians from federal employment. Emboldened by the White House initiative local police began to harass and intimidate gays and lesbians. On June 27, 1969 the New York Police raided a Greenwich Village gay bar called the Stonewall Inn. The police was surprised when the patrons fought back. And thus was born the gay pride parade held on June 27 every year since 1969 across the world.

Now that the Indian gays have won an important battle, they too should be prepared for a similar social and economical backlash. The government will certainly not openly discriminate against gay workers and officers. But private establishments may not be as sensitive in dealing with self-professed gays on their rolls. Gays will never know why they lost their jobs access to mainstream social events.

The real war has just begun. One the one side you can hear Vikram Seth, an internationally acclaimed author and self-confessed gay saying that “not only is it a calm, lucid and clean judgment full of common sense, but it also has been written in an important literally style”. In the other corner is Baba Ramdev, a high profile yoga guru, who believes that “homosexuals are mentally ill and need hospitals and not legal validation. The judgment will increase the sickness and harm the society…I will challenge it”. Once the Ramdevs take centre stage the Vikram Seths will simply slink away to the comfort of their air-conditioned gay dens.