HOMOSEXUALITY IN CONTEMPORARY INDIA

During the British Colonialism in India the destruction of images of homosexual expression and sexual expression in general became more systematic and blatant. T'he homophobic and Victorian puritanical values regarded the display of explicit sexual images as 'pornographic and evil'. The Western view, since the time of Colonial expansion, has been strongly influenced by reproductive assumption about sexuality. These puritanical values and attitudes were in turn mapped into the interpretation of sexual activity among colonial people which is evident from the responses to all forms of 'unnatural' sexual practices. The Indian psyche accepted the Western 'moral and psychological' idea of sexuality being 'pathological' rather than the natural expression of desire, which once used to be part of Indian culture.Some have argued that viewing and treating homosexual persons this way marked a stark departure from the Indian societys traditional attitude towards nonnormative sexual identities and behaviours, and emerging historical evidence in recent years has suggested that India has a long history of acceptance towards queer sexualities.This is not to say that India was uniformly and always egalitarian vis--vis sexual minorities, but that non-normative sexual orientations could be accepted without prejudice and that when they faced disapproval, it was seldom uncompromising.

Section 377 has had a deep impact on the individual lives of homosexual people in India, and on the collective treatment of gay and lesbian communities by both Indian state and society.Structurally, it served to construct homosexuality not only as deviant but also as delinquent.It was used by state actors such as the police for perpetrating violence against homosexual individuals, such as extortion, sexual assault, blackmail, harassment, physical violence and arrest.These forms of violence often targeted gay men visiting parks or other public places in urban areas.This law has also been used, informally, against lesbian couples by their families to try to separate them using police intervention.This law influenced public morality and contributed to the perpetuation of discrimination and intolerance towards people with non-normative sexual orientations.

Legal challenges to Section 377 began in the mid-90s. In 1994 a medical report estimated that there was same-sex sexual activity amongst 90 per cent of the inmates in a prominent prison in New Delhi, and expressed concern over possible HIV risks. As a result, experts recommended that condoms be distributed to inmates to promote safer sex practices. Prison officials refused to implement the recommendation since they viewed it as giving sanction to homosexual activity that was a criminal offence under the law. These developments spurred AIDS Bhedbhav Virodhi Aandolan (ABVA), a non-government organization working for the prevention of HIV/AIDS and the rights of HIV positive people,to file a case in the Delhi High Court in 1994 against the Indian state.ABVA asked that Section 377 be repeaed and declared void and unconstitutional because it discriminated against individuals and infringed upon peoples right to privacy.This challenge to Section 377 was not sustained for long.However, state concern over the HIV/AIDS pandemic and its rising numbers in India allowed ABVA to use it as a platform to launch its legal campaign against Section 377.

The next, and most substantive, legal challenge to Section 377 came through a public interest litigation file by Naz Foundation Trust in 2001 with the Delhi High Court.It pleaded that Section 377 interfered with public health interventions on HIV/AIDS with homosexual people, and violate their rights to privacy, dignity, equality and health. In addition, it urged the law to be read down in order to exclude all adult consensual same-sex sexual activity from its purview. In 2004, the High Court dismissed the case, arguing that the petitioners were not being prosecuted under the law and therefore had no locus standi in the case.Subsequently, the petitioners filed a review petition with the High Court, asking that the case be considered since it was a public interest case and therefore warranted the courts attention, although the petitioner was not being prosecuted by the state under this law. As this was also dismissed, petitioners appealed to the Supreme Court. The latter directed the High Court to hear the case.Eventually, the High Court ruled that homosexuality should be decriminalized in India.

Naz Foundation v. Government of NCT of Delhi and Others (2009) resulted in a historic verdict on July 2, 2009, that declared unconstitutional the criminalization of consensual sexual activities between adukts under Section 377. The judgement upheld the tenets of inclusiveness of the Indian Constitution, and emphasized that rights cannot be violated or denied merely because some citizens are perceived as different or deviant by the majority. The High Court also declared that Section 377 violated constitutional articles 14, 15 and 21. Section 377 will however remain in place to criminalize non-consensual penile non-vaginal sex, and also non-vaginal sex involving minors, where a minor is defined as any person below 18 years of age. In September 2009, the Government of India decided not to challenge this ruling in the Supreme Court (International Gay and Lesbian Human Rights Commission 2009). This is a tacit indication of state support for decriminalizing homosexuality.