The Supreme Court has referred the challenge to section 377
Indian LGBT activists hope for a change in law which criminalizes homosexual sex
When gay activist Ram Rao came back to India from London in June 2014, he was eager to be reunited with his childhood friend.
Instead, he found a cold businessman who didn’t want anything to do with him.
He said his friend told him that he couldn’t be seen with him because he didn’t want to ruin his reputation.
Rao works at the Naz Foundation Trust, a non-profit organization that works on HIV/AIDS issues in Delhi and says he returned to live in a society steeped in fear.
But he was hopeful that the Supreme Court could potentially change that.
On Tuesday, the court heard a challenge to Section 377, a colonial-era law that criminalizes sex between consenting lesbian, gay, bi-sexual and transgender (LGBT) partners. The statute was ruled unconstitutional in 2009, but re-enacted in 2013 by the Supreme Court.
LGBT advocates immediately filed a petition for a review after that decision.
A panel of three judges has now referred the petition within the Supreme Court said Anand Grover, lawyer for the Naz Foundation Trust, one of the petitioners.
Since 2013, hundreds of individuals have reportedly been arrested under the law.
Most of those who are charged end up paying a fine, said Anjali Gopalan, founder of the Naz Foundation Trust. However, some also end up doing a short amount of jail time.
A hopeful step
Some members of the LGBT community welcomed the Supreme Court order.
“This is definitely a progressive step in the right direction,” gay activist Manish Malhotra told reporters.
Another member of the LGBT community, Dhrovo, expressed hope that the Supreme Court will eventually ensure “we are able to live with dignity and respect.”
“We hope that the court will listen to the voice of the LGBT citizens of this country, that our lives cannot be criminalized (for sexual orientation),” said Dhrovo, who uses a single name.
In a statement, human-rights group Amnesty International described the Supreme Court move as a “positive development.”
“The Supreme Court has another chance to correct a grave error, which continues to put LGBT people under physical, mental and legal threat,” it said
Fines and jail stays do not make the law dangerous. What makes it so for gay and lesbian Indians is the aura of illicitness that now haunts their every move.
In the course of counseling LGBT people and their families, Rao says he’s seen a lot of families who treat their children like criminals.
Just recently a young man from a small town in Chattisgarh, in India’s eastern region, reached out to him for help because his family turned him out after they discovered he was gay.
The young man is unable to find anyone willing to take him in.
“After that (2013 decision) people connect LGBT people with (being) criminals,” said Kiran, an activist with the Naz Foundation Trust.
India is currently one of 75 countries in the world that makes being gay a crime, according to the International Lesbian, Gay, Bisexual, Trans and Intersex Association, which tracks how many countries institute such laws.
Kiran, who is biologically male but whose gender identity is female, said that after resumption of Section 377 in 2013, her romantic partner became a lot less willing to meet with her.
He kept on making up excuses, Kiran said. “‘Oh, my family is waiting for me’,” she recalled. “’Oh, its getting late.’”
He was afraid, Kiran said. He would say, if we are caught by the police, how can we meet, how can we continue our relationship? It’s criminal.
“He’s a ‘phatu’,” she said, laughing, using the insulting slang for “coward” in Hindi.
Kiran hasn’t seen him now for four months.
Tides of change?
After the Delhi High Court decriminalized sex between LGBT partners in 2009, there was a sense of freedom. Many came out to their family members and friends, Kiran said.
A decision from the Supreme Court in favor of the petitioners means that the court is open to reviewing their position.
“Everyone’s trying to manage expectations and be cautiously hopeful,” said Gautam Bhan, one of the petitioners and an LGBT activist in Delhi ahead of Tuesday’s hearing.
However, his belief is that it’s unlikely the Supreme Court will overturn the law.
“It is a long shot. We’re asking for a lot,” Bhan said. “We’re essentially asking (the) court to review its own decision.”
Still, he said, regardless of the decision, the community has become stronger in the past two years. “They are braced to handle any outcome.”
Huizhong Wu is an intern in the CNN New Delhi bureau. Harmeet Singh contributed to this report.