Gays in India: Shifting ‘positions’ of Government is an insult

The historic July 2, 2009 verdict of the Delhi High Court, decriminalising homosexuality, came up for hearing in the Supreme Court last month, after being challenged by various religious bodies in the apex court. The hearing has been making headlines in the mainstream media from day one, thanks to the various goof-ups made by the government of India.

To begin with, the ministry of home affairs put its foot in the mouth over their position on Section 377 of IPC. Speaking on behalf of the MHA, the Additional Solicitor General, Mr P P Malhotra reiterated the stand (which called homosexuality immoral and against the order of Nature) that MHA had taken in the Delhi High Court. The comments drew flak from all quarters, in mainstream media and social media. The MHA was quick to do a volte-face and distance itself from the ASG’s affidavit. On the next day, the govt counsel clarified in the court that while the govt had no legal problems with decriminalising homosexuality, they have no stand on “homosexuality” par se.

The government also earned the ire of the apex court bench for “making a mockery” of the system by continuously shifting its position on the issue at hand and digressing from the core issue of IPC 377, and focussing on the prevalence of HIV among homosexuals. The government put across the view that homosexuals formed a large risk group for the spread of the human immune deficiency. The Supreme Court reprimanded the govt for the lack of fresh data and asked them to present a detailed account of how many HIV patients are there in India at present and how many of them belong to the LGBT community.

The government came up with a set of data before the apex court. They claimed, there are about 25 lakh homosexual citizens in India, 7% of whom are affected by HIV. What correlation the govt wishes to draw between sexuality and a virus borne disease, is beyond our understanding. Specially so when sexual minorities are just another HIV risk group, and heterosexuals are at as much risk of the disease as LGBT community.

The opposition of the religious groups to decriminalising homosexuality is not something new for the LGBT community. The arguments made by Muslim Personal Law Board hovered around morality, procreation and order of nature as usual. The famed advocate Mr Fali Nariman, who appeared on behalf of the parents of homosexual kids, took on such opposition head on and questioned the definition of “natural”. He pondered why laws made in 21st century should tether to the moralities and social structures of medieval era.

That the government has clearly made this case a theatre of the absurd was apparent from the Apex Court bench’s observation that the supreme legislating body of the nation was casual in its approach towards the case of homosexuals. It pondered what stopped the Lok Sabha from enacting a law decriminalising homosexuality, despite recommendations by the Law Commission.

It seems the rap from apex court worked in waking up the government from its slumber. On Wednesday, March 21, the Attorney General submitted to the court that they had no objection to decriminalising Section 377. Continuance with such an act was against Article 21 of constitution the counsel added.

However, this is too little too late. After opposing decriminalisation at Delhi High Court, the government suddenly seems to have woken up to human rights. Why did the government wait 3 years before changing their stand on Section 377 of IPC, if they claim Delhi High Court verdict was enlightenment for them? Why did the Prime Minister of the country not censure his Health Minister for publicly claiming homosexuality was a disease bred in foreign shores?

The right to dignity of life for the LGBT community is now a few weeks away when hearings on the issue ends in Supreme Court. Till then all eyes will be on Justice G S Singhvi and Justice J S Mukhopadhyay.