Living in a society that is completely accepting of homosexuality is something that, in the UK, is quickly approaching, and the strides that have been made both within society and legally in the previous 50 years are phenomenal. Being gay was legalized in the UK in 1967, and although homophobic attitudes have taken and do take time to change, with gay marriage coming into place early last year and couples of notoriety such as Sir Elton John and David Furnish marrying as soon as it was allowed, one hopes that more and more will follow suit and that “gay” will no longer be a word used as a joke or to humiliate and insult schoolchildren, but be purely representative of the loving relationships that homosexuals now (legally) have the right to.
After having lived in India for four years, I moved to England age 9. One thing that really struck me within school was the attitudes of the people. Whilst in Delhi you may have had the token class clown, saying things designed to offend and cartwheeling over desks, there was a sense among my school of revolution, of wanting change and fighting for equality. We were all highly political, and fought hard from our classroom to combat climate change, banish racism and, during the 2008 American presidential election, to put a “black man in the White House.” You could be into Hannah Montana or ACDC, like boys or like girls, it was all cool with us, we were this new breed of all-acceptance set to dominate Asia.
My prep-school school in England, however, was markedly different. Sweet and endearing as it was, it was far more closed off, these children really were children, without dreams of places in American senate or of solving the Indian housing crisis. I guess that it is here where I first really noticed the word “gay” used as an insult, as a crass joke or way of telling someone to go away because they were “so gay,” or that they’d be classed “gay” if they did this or that. Perhaps it was the age we all were, 12 and a little afraid that if we didn’t pass the buck of homosexuality off onto someone else very publicly then it might turn and, out of nowhere, inflict us. It was an all girls’ school, and as much as we would have liked to believe that we knew everything, the reality was we were incredibly traditional, incredibly old fashioned and something that didn’t fit the very privileged social norm of our token mothers and fathers really threw us.
Being homosexual was very much talked about, for better or for worse, but with a jovial tone, it was something to be laughed at, something that could be used against someone, but with no deeper meaning. I found this incredibly odd, this was a political issue I felt very strongly about and yet here it was treated as a joke, why were these children not proud of the diversity their new laws offered? Why were they scared of something that even parliament had acknowledged was nothing wrong, was a part of society that should be celebrated as much as any other love, any other couple. Why did they not see love as love? Why did they feel it imperative to use the word “gay” as a derogatory term, or to assure everyone that they were not “Gay, why, (gracious,) are you?”
In hindsight, I think this was more acceptable than I felt then. Yes, gay persecution is still avid and terrible across the UK, and this hatred should be addressed, but I also understand that society takes time to change, and that talking about something and raising awareness is a step forwards in any case. Yes, when an icon like Tom Daley comes out to the world, when Stephen Fry is pictured with his husband, people do talk, naïve schoolchildren will make comments, but many people will also be happy, will rejoice in the fact that times have moved on, that the society they are creating for future generations is going to be rich, is going to be colorful and beautiful… (And that hopefully people with the views of John Lyndon Sullivan, a UKIP candidate, who wrote, “I rather often wonder if we shot one ‘poofter,’ whether the next 99 would decide they weren’t after all?” and previously suggested that homosexuals could be “cured” with regular physical exercise, will never get into power.)
However, what if your society is moving quicker than your government? What if an emerging generation, willing to accept and forget unnecessary hatred, is held back by old, oppressing laws?
Right now, being gay is illegal in India. Around 10 years in prison for love. 10 years in prison for something not even justifiable as a crime. Section 377 of the Indian Penal Code reads; “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”
Ultimately, this prohibits any sex that is not for procreation, which could be applicable for either men or women, but subsequently ended up being used as a force against homosexual men, criminalizing their sexual expression and identity. Section 377 was, and is used as a way to harass, blackmail and extort homosexual men, and they fear that they cannot seek legal help against this as they may then be arrested and penalized for admitting their sexual orientation in the first place. Gay men remained a hidden population due to fear of prosecution under the law.
The Naz Foundation (India) Trust is a Delhi-based non-governmental organization that works in the field of HIV prevention amongst homosexuals and other men having sex with men. Through its interactions with clients, Naz Foundation became acutely aware of the negative and destructive impact of this section on homosexuals.
Upon realizing that Section 377 constituted one of the biggest impediments in access to health services for men having sex with men, they aimed to bring to light the discrimination it created.
In 2001, Lawyers Collective challenged the section on the grounds that it proved a violation to citizens’ right to the constitution – to the fundamental rights and principals that govern a state and aim to create a better society rather than a worse one. By violating the constitution itself, it violated India and its people.
Although originally this challenge was dismissed by the High Court, in 2006 the Supreme Court passed an order detailing that the matter could not have been dismissed on the grounds that it had been, and thus remitted it to the High Court of Delhi.
Once reviewed, on February 7, 2009, the Delhi High court came to the judgment holding Section 377 to go against Articles 21, 14 and 15 of the Constitution – the articles that detail equal protection of law and against discrimination, and the right to privacy, dignity and health. They admitted that it did, and was actively violating the constitution and should be addressed, and that the criminalization of consensual sexual acts of adults within their private lives, was indeed, not a crime.
For a while, India seemed to be growing, to be accepting, and to be making the legal advances that the 21st century should be bringing to its society. However, following this ruling of the Supreme court, 15 petitions were filed against the overturning of 377, and the majority from faith and religious based groups.
This is interesting, as of the 2001 census, 80.5% of Indian citizens were Hindus, and the Hindu religion does not condemn homosexuality. The Sanskrit literature defines a “third sex” referring to non-hetrosexuals, whether that is in the form of homosexuals or transvestites. The Kama Sutra explores it, and in ancient times, it was tolerated as a natural part of society and Hindu scholar Ruth Vanita says that “Same sex desire and even sexual activity have been represented and discussed in Indian literature for two millennia, often in a nonjudgmental and even celebratory manner.” Thus, pre-colonial India was far more tolerant of homosexuality than today’s India, with same-sex practices detailed in much literature and art, acknowledged, accepted.
However, with the arrival of Europeans who were shocked at such behavior, homophobic messages were spread in the form of more Christian teachings into education, law and politics, with homosexuality becoming illegal in 1861. Whatever prejudices were present in pre-colonial India were magnified with the British rule and were taken on by many Indians as their own views, even by Hindu nationalists, who seemed to be so indoctrinated that they felt they too had to go against something that would have been far contrary their previous views.
Thus, I wonder what religious groups were so angry with the legalization of homosexuality, with the legalization of love. Christians make up 2.3% of India’s current population, and hardline Christians even less of that – and I wonder if certain takes on their faith should be allowed such a devastating impact on the 2.5 million gays in their country, 7% of whom are HIV positive and cannot seek help.
India, we fought for and we have independence from the British. We have a nation bright and intelligent and capable, and we do not need to be tied down by old colonial laws that go against what fundamentally makes us so great, what gives us our diversity. Our children are accepting and incredible, and our people want change, and if the government is the system stopping that from happening, then this needs to be addressed. I am proud to be Indian, but I am saddened that old, unfair, out-of-touch laws should hold back a nation of incredible individuals, gay or straight, and that the LGBT flag cannot fly hand in hand with the Indian one.
Section 377, stop acting like an insecure 12-year-old. Get out.