Is Being Gay A Crime In India?

Shubhda Chaudhary

Yes, it is.

According to the Supreme Court in 2012, there are 2.5 million gay people recorded in India. But there are a higher percentage of people who have concealed their sexuality in order to avoid discrimination. In September 2006, Nobel Laureate Amartya Sen, acclaimed writer Vikram Seth and other prominent Indians publicly demanded the repeal of section 377 of the IPC.

Article 377 makes homosexual sex punishable by law and carries a life sentence. The law which criminalises homosexual behaviour was drafted by Lord Macaulay in 1860 and states that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment”. Furthermore, the law is at odds with various articles in India’s constitution which supposedly guarantee the right to life and personal liberty, equality, and which prohibit discrimination. Following the decision, both Uganda and Nigeria signed into law harsh anti-gay legislation and campaigners believe the move was influenced by the decision of the Indian court.

It certainly deals a body blow to the very idea of individual choice. It re-criminalizes homosexuality, which carries a maximum jail sentence of life, and gives the police one more excuse to harass, extort and jail law-abiding people whose only ‘crime’ is that they do not conform to the traditional view of sexuality. Much of the urban emphasis is now towards everyday practicalities: Being able to open a joint bank account, get insurance, acquire a home loan, sign as next of kin in a medical emergency, pay rent without a landlord threatening to throw them out. Inheritance is a very contentious issue.

Though, the Indian Supreme Court has deemed homosexuality a crime. But in a revolutionary ruling, the same justices extended legal rights and equality to transgender people. Not only that, they abolished the binary gender system, creating a protected third gender that covers not only transgender people, but also intersex (who have both male and female anatomy) and eunuchs (who have neither male nor female anatomy), often collectively called “hijra.” The change allows them to identify their gender as ‘hijra’ on all government documents, including passports. Governments in Nepal, Bangladesh, and even Pakistan have recognized a third gender category, as well.

India has not been a universal beacon for minority-group freedoms. The infamous Supreme Court decision to effectively re-criminalize homosexuality created a human rights conundrum: Transgendered people cannot be fully protected if their gender identity becomes illegal when expressed in a sexual context. In other words, a transgender woman engaged in heterosexual relations with a man may be breaking the law under India’s ban on homosexual acts, if she is anatomically male.

The issue of ‘being a gay’ comes to light further in the context of the upcoming film ‘Aligarh’ based on the real life of Dr. Siras and his mysterious death.
AMU professor Shrinivas Ramchandra Siras was fired from his job because of his sexual orientation. Siras had mentioned that the institutionalized homophobia was directed towards him to overshadow allegations of nepotism and financial irregularities against the vice-chancellor.

Siras was born and brought up in Nagpur. He had done his post-graduation in humanities from Hislop College before completing his PhD on eminent Marathi author Gajanan Tryambak Madkholkar's writings. His thesis was on 20 political novels of Madkholkar, perhaps only one from the university to have done his doctorate in this subject, considered difficult by many. The gay professor was considered a genius and a good critic of Marathi. His biggest achievement was stated to be creating interest in Marathi at AMU, where a majority of students were Muslims and from Hindi/Urdu background. A poet himself, Siras got the Maharashtra Sahitya Parishad award for his 2002 collection of poems -- Paya Khalchi Hirawal (Grass under my feet).

In 2010, the body of 62-year-old Siras, a reader in Modern Indian Languages, was found on the bed in his private apartment outside the university. Outraged academics, supporters, gays and concerned citizens started an online signature campaign demanding justice in the death of Dr Siras. Till now, the reason behind his death, which was initially deemed as suicide, has not been cleared, which is a major blow to our justice system and institutional homophobia which is manufactured in the campuses.

In order to fully protect transgender groups, nations must both overcome binary gender constraints and de-couple gender identity with sexual orientation. Society must imagine a plurality of genders and sexualities all with equal protections under the law. With this mindset, a new fundamental right emerges: the freedom to determine one’s own identity as inherently pluralistic. Indians accept the presence of the transgender community, but they are still kept away because of the ‘homosexuality’ connotation that transgenders carry with them.

This indeed is a regressive step and it silences the aspirations of millions of Indians who are living dual lives, are not ‘out of the closet’ and fear abandonment by their families or are forced into marriages. It is a failure to accept the freedom of choice and identity of every human, because eventually, the state needs to realize that being ‘gay is as normal as being a trans-gender.’ There is nothing abnormal about it. And in the end, who gets to decide, what is natural, anyway?