The road to decriminalization: litigating India's anti-sodomy law.

• Author: Sheikh, Danish

1. INTRODUCTION

   Late in the afternoon on an early spring day, the Supreme Court of India began hearing the final arguments that would determine the legal status of the lesbian, gay, bisexual and transgender community in India. Earlier that very week, I told my parents that I was a member of the litigation team --and that I was gay. Without warning, I found arguments from a heated family discussion reverberating in the chambers of a court of law.

   These dialogues were inevitable: both the ones in the courtroom and the ones with my parents. In 2009, the Indian LGBT community took its first step towards equal sexual citizenship through the Delhi High Court's judgment in the matter of Naz Foundation v. NCT of Delhi and Others. (1) The Bench, comprising then Chief Justice of the High Court Justice A.P. Shah and Justice Muralidhar, crafted a 105-page document that is considered a landmark moment in Indian judicial history. The judgment not only empowered a historically marginalized community, but it also laid the foundation to strengthen other human rights struggles in the country with its expansive reading of constitutional rights. Yet for all the revelry that surrounded the judgment, there was an equally fierce backlash that played out across Indian television screens as advocates for the movement faced off with opponents from religious groups of all faiths and denominations. It was inevitable then, that within two weeks of the decision, an appeal was filed before the Supreme Court of India.

   The conversation with my parents too, had been set into motion years before. Maybe it began with that first wave of self-acknowledgment, or the first outing (to a law school classmate, in the middle of a quiz), or even the first piece of writing I did on the issue. I still recall the forced-casual call I received from my father years ago as he inquired about "this academic piece on homosexuals you wrote which I just found online." I registered his emphasis on the word "academic," almost a plea--let it just be academic interest. Even more vivid was the look on my mother's face as I informed her in no uncertain terms that I wouldn't ever get married, "for reasons I can't explain right now." We dealt with it by not dealing with it--until, that is, the day we had to, when the implied became an expressed statement, and the option of reading between the lines disappeared.

   "Homosexuality is a disease." A sentiment expressed by a psychiatrist to whom I was taken. An argument advanced before the Supreme Court of India. "Homosexuality is a part of Indian culture, and has been for millennia." Two judges grappled with this submission. Two parents struggled to reconcile themselves with this information. Progress was made on both fronts. A Rajasthani folk story was the more unlikely of submissions which seemed to make an impact on the Court. Time, plain and simple time, was what led my family to take their first tentative steps toward understanding.

   I write these words at a time of uncertainty. It has been more than a year since the Supreme Court of India finished hearing arguments on the case. In the hands of a two-judge bench, Justice G.S. Singhvi and Justice S.J. Mukopadhyay, lies the question of whether the lesbian, gay, bisexual and transgender community in India will continue to remain outside the specter of criminality--or be dragged back into it. An uneasy anticipation has descended upon the LGBT community as all eyes turn toward the Supreme Court, while tentative action plans are made depending on what way the judgment will go. Uneasiness characterizes the silence between me and my parents too, as we push the now-acknowledged issue of my sexuality to the background of our conversations.

   We don't know when the judgment will be out, and we can't really predict which way it will go. What then is this Note hoping to achieve?

   I'm attempting to capture a moment of uncertainty in the LGBT struggle in India. Whatever the Supreme Court does, it will mark a significant milestone in the movement, the culmination of a litigation process already more than a decade long. But until it does come out with its judgment, we have the proceedings before the Court, and the context of the movement that led up to them, to illuminate what lies ahead.

   Which is all well and good, but why impose upon this a parallel personal narrative simply because it intersected with this judicial moment?

   I think the answer to that lies smack in the middle of the questions the Supreme Court judges raised over the course of the arguments. How did the impugned section actually target the LGBT community? What was the impact--the impact of the law, the impact of the Naz Foundation judgment, the impact of stigma? At what sites did the alleged blatant misuse of the law happen? There are some answers to which the formal give-and-take of the adversarial legal system cannot do justice. Sure, we can file affidavits that testify to these experiences and produce media reports that recount the correct stories, but there will always be a level of formalism to the discourse. Academic legal writing, it isn't necessarily less formal, bound as it is by similarly rigid rules of constructing arguments and ruthlessly stripping whatever it perceives redundant. This, then, is an attempt to counter both kinds of rigidity. In the end, the story I tell is a universal one: the story of how we are required to make a case for law's empire as it intersects with different modes of power and shapes our lives. It is my response to the questions of the Court, a response that would be impossible to truly articulate within the realm of the courtroom.

   Another reason I make use of this narrative device derives from the Romantics--the idea that if one describes the particular in enough detail, the universal will begin to seep through. The stories I've elected to tell here echo fragments of the larger story of the Indian LGBT movement and the manner in which it has evolved over the past decade. I'll start by talking about how the case finally came before the Supreme Court in the manner it did. I will locate the middle of this essay within the courtroom as the arguments were presented before the judges. Without a final decision to tell us which arguments were effective and which ones ultimately bit the dust, I'm again hoping to convey the mixed sense of anticipation and dread felt by the respondents in the Courtroom as different statements were presented and received by the Court. Finally, I'll end by discussing where the future of the movement might lie.

   Early in the Supreme Court proceedings, the judges asked opposing counsel a seemingly throwaway question: "Do you know any person who is homosexual?" The counsel was Additional Solicitor General Mr. P.P. Malhotra, who replied that he was ignorant about "modern society." For many of us in the courtroom, this exchange evoked an important moment from another time and place--indeed, twenty five years before. Then it was the United States Supreme Court that was poised to finally recognize the unconstitutionality of anti-sodomy laws. What resulted however, was the near miss of Bowers v. Hardwick (2): a 5-4 decision with the crucial swing vote of Justice Powell becoming a mythical point of contention in the movement. (3) Years later, there came another moment, and that time, it wasn't a false alarm. With Lawrence v. Texas, (4) the U.S. Supreme Court overruled Bowers and effectively decriminalized same-sex sexual activity throughout the country.

   Will this be our Bowers or our Lawrence? Or will the Court possibly go down a third path, abstaining from a declaration and asking the Government to decide?

2. GETTING THERE IS HALF THE FUN

   "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 offense described."

   These words compose Section 377 of the Indian Penal Code, the colonial era legislation that has been used to "persecute, blackmail, arrest and terrorize sexual minorities" in India since the inception of the Code, more than a hundred and fifty years ago. (5) The Naz Foundation judgment's stroke of liberation came from removing consensual sexual intercourse between adults from the ambit of criminality. There are a number of moments one could start with in attempting to trace the story of the case.

   In her book Loving Women, Maya Sharma locates the struggles of a number of working-class lesbian women, in which the honor of a family or village is often invoked to oppose the demands of two people who want to be with each other. One incident involves a woman who "dares" to elope with another woman being beaten and stripped, having her face blackened, and being paraded around a village with a garland of shoes on her neck. (6) "Sahayatrika, a lesbian women's collective in Kerala, has documented twenty-four cases of lesbian couple suicides in Kerala during the period between 1996 and 2004." (7)

   An important moment that one might use to identify the start of greater public discourse on LGBT issues is in precisely such a story. This was back in 1987 when Urmila Shrivastava and Leela Namdeo, two women from a rural background serving in the Madhya Pradesh constabulary, decided to get married at a temple. Harassed about their relationship by a male superintendent at a police training camp, they took a photograph of themselves enacting their marriage rites. Their subsequent dismissal captured the media's imagination and is one of the significant early "outings" of the LGBT movement in India. (8) In their own words:

   "We were kept in isolation and not given food for 48 hours. They coerced us into signing papers that we had not read. We were ... deposited at the Bhopal...