Outside Delhi’s high court the streets thronged with jubilant crowds hugging, sobbing and beating drums. Inside, in front of a hushed courtroom, the judges had just passed a historic ruling. Gay men were no longer criminals. Section 377, the 149-year-old colonial law that banned gay sex, had been deemed to be a violation of fundamental human rights protected by India’s constitution.
For some gay and lesbian Indians the high court declaration will mean having the courage to come out. For Shaleen Rakesh, a 38-year-old veteran gay rights activist, it is the end of a legal campaign he mounted six years ago against an insidious law that left him powerless against homophobic violence and unable even to talk about rights.
‘Domestic partnership, adoption, all the things that straight people take for granted, activists couldn’t even talk about because Section 377 made it illegal to be gay in the first place,’ he says. Under the colonial law, men could be jailed for 10 years for having gay sex, an act which was classed as an ‘unnatural offence’ along with paedophilia and bestiality. ‘How could you talk about rights when the legal framework made you a criminal?’
Six years ago, on behalf of the Naz Foundation HIV/Aids charity, and with the help of a legal charity called the Lawyer\’s Collective, Rakesh began to put together a public-interest litigation against Section 377. ‘Besides just coming out and shouting from the rooftops, trying to change the law was the only thing we could do,’ says Rakesh, who now lives with his partner of seven years in Delhi.
The everyday harassment of gay men by police and thugs also strengthened Rakesh’s resolve to fight the law. Gay men were rarely prosecuted under Section 377, but they were often intimidated or exploited because of it.
Once, while he was coordinating the Naz Foundation’s ‘men who have sex with men’ programme, a whole group of men with whom Rakesh had been working were badly beaten up. ‘A bunch of gay boys who were walking home from the support meeting were attacked by some street boys,’ says Rakesh. ‘They had iron bars and hockey sticks. Many of the boys I knew got their heads smashed that night and were taken to hospital.’
‘We knew who did it. I wanted to make a police complaint but we couldn’t because of the law,’ says Rakesh. ‘The police had a history of raiding groups working with gay men and of rounding up and arresting outreach workers,’ he says. ‘So we were afraid.’ The men who were beaten up were also afraid to speak out. ‘They were not ready to own up to being gay publicly; they thought they would be criminalised,’ he says. ‘In the end we made no complaint.’
Rakesh’s journey to becoming a gay rights activist and legal victor began when, as an 11-year-old schoolboy in Delhi, he realised he was attracted to men. He describes growing up surrounded by a ‘conspiracy of silence’, in which nobody even spoke of the possibility of homosexuality. ‘I would have been happy to hear something I could latch onto or fight with, but there was just silence, nothing,’ he says.
‘There was this hypocrisy. It’s okay to do what you want to do in the bedroom but you don’t talk about it in the living room. I used to find that appalling.’
He got into gay activism in his twenties, finding that voicing what he felt about the state of affairs ‘began to heal the years of silence and oppression that I felt as a gay boy growing up’.
But before he could go public, he had to tell his mother. After keeping his sexuality secret from family and friends for a decade Rakesh came out to his mum, who delighted him by replying simply, ‘So what?’ Most gay Indians do not have the privilege of being born to such liberal parents.
After coming out to his family, he began working with gay organisations, starting with the Humsafar Trust in Mumbai and then the Naz Foundation in Delhi. ‘I became a very openly out gay rights activist,’ he says. ‘I used to write a magazine column, I did training workshops and seminars, I was very vocal in the media, I organised protests and I did a lot of work with the National Human Rights Council on the psychiatric mistreatment of homosexual clients by the medical fraternity.’
Rakesh did not expect legal victory to come so soon – the petition had been winding its way round the country’s judicial pipelines for years – but credits the judicial change of heart to two things: ‘the HIV/Aids argument’ and a groundswell of public activism.
Gay men are up to eight times more likely to contract HIV than the average Indian, and many groups lobbied for Section 377 to be overturned on the grounds that it pushes gay men underground, making them more vulnerable to HIV. NACO, the government’s HIV/Aids control body, came out against Section 377 in 2006, arguing that the law made HIV prevention more difficult. The health minister Anbumani Ramadoss and many AIDS organisations, including the Indian HIV/Aids Alliance, where Rakesh now works, have also called for the law to be abolished in order to protect public health.
Opening the floodgates
Social pressure from around the country, but particularly the big cities, has also grown hugely in the past few years. ‘The floodgates have opened,’ says Rakesh. Cities such as Delhi and Mumbai have held gay pride marches; young gay people and their families have been interviewed by journalists on primetime TV; Bollywood films now have gay characters. Bombay Dost, a gay magazine, has been relaunched and is no longer sold wrapped in brown paper. This cultural shift ‘probably gave the court some degree of comfort to believe that the population was ready for change,’ says Rakesh.
Now that homosexuality has been decriminalised by the high court the government will discuss formally repealing Section 377. But there is also plenty of opposition to a change in the law. Religious groups, leaders of the BJP (the Hindu nationalist party), and millions of ordinary Indians, especially those in rural areas, still find homosexuality unacceptable.
This social discrimination will be much slower to budge. ‘In small towns in India it’s still virtually impossible to come out to your family,’ he says. ‘Even in Delhi most young gay men find it hard to come out.’ Many men succumb to the social pressure around them and keep their sexuality secret. When Rakesh was in his late teens he asked a man he’d met at a cruising spot whether he would ever get married (to a woman). ‘I already am,’ he replied. ‘Isn’t everyone?’
Rakesh no longer sees himself as a political activist. But the legal change he helped to bring about has set a host of new challenges for the next generation of activists – to make social change follow legal change, and to campaign for all the rights that straight people take for granted.
‘I don’t think people are just going to change their opinions overnight because of the law,’ says Rakesh. ‘Stigma and years and years of socialisation don’t get changed overnight, but it’s a start.’
Global developments in gay rights
A law was proposed earlier this year that would legalise same-sex civil unions in Venezuela. It has passed through one round of discussion in the national assembly but it has faced strong opposition from Venezuela’s episcopal church, which has publicly condemned the proposal. The proposed law would also accord equal rights to transexual people.
Gay rights campaigners in Zimbabwe believe they have a 50-50 chance of getting gay, lesbian and bisexual people protected under the country’s new constitution, which is currently being drafted. At the moment sex between men is illegal. Keith Goddard, director of Gays and Lesbians of Zimbabwe, says that the best chance of success is to argue for the law to be repealed in the name of HIV prevention.
The supreme court in Islamabad has ordered that transgender people should receive equal protection and support from the government. The interior ministry has also been directed to ensure police provide protection to trans people from criminal elements. Gay sex is still illegal.
Gay rights took a step back in Burundi in April this year after the government criminalised homosexuality for the first time in the country’s history. Gay men who are prosecuted can be punished with up to two years in prison.