Tammy Baldwin from Wisconsin became the first gay senator in the recently held elections in the United States. She has made history of a sort in a country which has been debated long and hard about giving equal representation to people of an alternative sexuality. In contrast India, which has a long civilisational history, lives in denial of its own past. Homosexuality is not a new concept for the subcontinent—even the Vedas refer to same gender sex

A recent book, Same Sex Love, by Ruth Vanita and Saleem Kidwai traces the history of homosexuality in the Indian subcontinent throughout the ages. What they come out with are revealing insights for those who condemn homosexuals in the name of protecting Indian culture and civilisation. The book says, “Our study suggests that at most times and places in pre-nineteenth-century India, love between women and between men, even when disapproved of, was not actively persecuted. As far as we know, no one has ever been executed for homosexuality in India”. In the Manusmriti there are references to punishments like loss of caste, heavy monetary fines and strokes of the whip for gay and lesbian behavior. Such references point to the tensions in the norms of compulsory heterosexuality prescribed by Brahmanical thought. Both sexual systems coexisted, despite fluctuations in relative repression and freedom, until British Colonialism, when the destruction of images of homosexual and sexual expression in general became more systematic and blatant. The last century witnessed major changes in the attitude to homosexuality. Since 1974, homosexuality ceased to be considered abnormal behaviour and its classification as a mental disorder was removed. It was also decriminalised in different countries. Since then, various countries have enacted anti-discriminatory or equal opportunity laws to protect the rights of gays and lesbians. In 1994, South Africa became the first nation to constitutionally safeguard the rights of lesbians and gays. Canada, France, Luxembourg, Holland, Slovenia, Spain, Norway, Denmark, Sweden and New Zealand also have similar laws. In 1996, the US Supreme Court ordered that no state could pass legislation that discriminated against homosexuals. In India, so far no such progressive changes have taken place and homosexuals remain victims of violence in different forms, supported by the state and society. However, in a landmark judgment in 2009, the Delhi High Court legalised gay sex among consenting adults, holding that the law making it a criminal offence violates fundamental rights. But despite the Court ruling, not much has changed on the legislative and societal front, though opposition to gay rights is becoming less vocal. To speak in favour of LGBT rights is Danish Sheikh, a homosexual and active promoter of sexual rights. In opposition is BP Singhal, Hindutva ideologue and retired IPS officer.

DANISH SHEIKH // The personal tends to conflate with the political when it comes to LGBT activism, and one part of this for me is simply being out as a gay man. I find it important to weave my identity into discussions about marginalisation, as I feel the biggest fight that we’re waging is that of invisibility, which can only be countered by putting a personal face on the stories of harassment and abuse. Section 377 of the Indian Penal Code criminalises ‘carnal intercourse against the order of nature’. These words have been interpreted to include homosexual intercourse by a number of High Court decisions, and thus cast a shadow of criminality on the LGBT community in India. With the Delhi High Court’s Naz Foundation judgment of 2009, Section 377 was read down to exclude consensual sexual intercourse between adults, effectively decriminalising homosexuality in India. Soon after this judgment, an appeal was filed in the Supreme Court of India. The Supreme Court heard arguments on the matter early this year and has reserved the case for judgment. Today, even if we have a law which is in our favour, we are yet to receive societal acceptance. Part of it is based on our negative stance towards sexuality, where any expression of sexual desire outside the bounds of heterosexual marriage is frowned upon. The LGBT community simply reflects the furthest extreme from this normative ideal. The existence of alternate gender and sexuality also poses a challenge to dominant ideals of masculinity and patriarchy. More than anything, I believe the discrimination is based on a lack of information/ interaction with the LGBT community, which allows people to foster prejudices which go unchallenged. Whether it be a higher risk of HIV/AIDS due to lack of access to safe spaces and awareness, economic marginalisation of the hijra community due to the stigma faced by them, or issues of harassment at the workplace, the issues are all tied in to social prejudice. However, things are slowly changing. And the media has played a very important role in outing homosexuality through their positive coverage, particularly at the time of the Naz Foundation judgment and in reporting on Pride marches in different cities. At the same time, there have been instances like the TV9 Hyderabad broadcast where the channel outed a number of closeted gay men on a prime-time broadcast. In that case, TV9 was censured by the News Broadcasting Standards Authority and asked to pay a fine, along with issuing a public apology. While the media has been vocal, I would say that the larger political parties are mostly silent on the matter. Recently, Tammy Baldwin became the first gay senator in the US. In India, we’ve had instances of members of the hijra (eunuch) community stand for election and even win. But when it comes to homosexuality, there is zero visibility in the political sphere. I do believe it is largely a question of time more than anything else. The LGBT movement in India has progressed at a remarkable pace and I don’t think it will be too long before we find an openly homosexual person contesting elections. The one section of society where getting acceptance won’t be easy is the religious circle. I think the LGBT movement will require some amount of active engagement with religious groups to the extent of finding spaces within religion for accepting difference. These are movements that have progressed with some success in places like South Africa and the United States, where you have religious groups opening up spaces for homosexuality in their midst. In India no such thing has happened yet, but with constant effort and interaction it might become a reality some day.

BHARATENDU PRAKASH SINGHAL // Section 377 of the Indian Constitution is nothing but a paper tiger. On paper, it inhibits people from freely becoming homosexuals but it has never been an easy law to implement. For implementation of any criminal law you need a complainant and a witness—sodomy is being conducted in closed rooms and neither party will complain because it’s a mutual consent matter. Moreover, Sec 377 does not refer to lesbians, because it specifies that penetration has to take place. The major issue is that you can’t even fight the cause properly. In my 35 years in the IPS, I never saw a single case registered under 377 and no case of police harassment. I am aware of the arguments made in favour of ‘gay rights’. They say that gays feel that their desire, their very existence, is being criminalised. I ask them, what do such people have to say about adultery between consenting adults? Homosexuals have also been transcending the law. How can you differentiate between the violation of one law and another? If you talk of consenting adults, why should gambling be an offence? What’s wrong with sati if a devout wife wants to commit it? The whole question is about social morals. I say public morality, and not Constitutional morality, because the Constitution so far has not been able to act against the crimes of homosexuality. And if the Constitution is lacking in enforcing public morality then there is something wrong with it. The Constitution prescribes not just fundamental rights but also duties, including preserving your culture. Moreover, you cannot possibly ignore public opinion; and a majority of the people have a problem with homosexual behaviour. In India most people have normal sexual behaviour and by legalising a behaviour which is not popular you are going against the masses. Do not think that I am unaware of the mentions of homosexual behaviour in our scriptures, but even they have talked about punishments to be given for such practices. When Manu has prescribed a punishment ages ago, you can’t play fraud by saying that it’s a Victorian notion. There was a survey by Wikipedia in 2004 of 44 countries asking if they would like this to be an offence. 83 per cent in India wanted it to be! It is not in the nature of Indians to have homosexual behaviour. Whatever you are seeing is an imposition from the west. Why do you think the noise to decriminalise homosexuality is emerging now? It’s because the market is open, we are more exposed to the western ways of life and as a result we are getting corrupted. Don’t get me wrong. I don’t have any problem with homosexuals. Homosexuality has existed since the beginning of time. But it doesn’t mean it’s a healthy thing. The Center of Disease Control in the US has done a study on how homosexuality breeds diseases. Besides, it’s completely unnatural. We are fighting to preserve nature and those who oppose us want to legalise abnormal behaviour. I feel homosexuality is a crime against humanity. The talk about police harassment and public persecution is all bogus. I have personally asked people for examples. Though they said there were many cases but the only example they ever had was that of Lucknow in 2001. I will tell you what happened. When the police raided this place in Lucknow, they were just boys there who were ‘supposed’ to be doing HIV-AIDS awareness work, teaching gay men about the use of condoms, etc. But if you see the recovery memo, it has video cassettes where you can explicitly see sodomy taking place. They were there to promote homosexuality. No condom was found; it was a gay orgy.