The Supreme Court of India on December 11, 2013, upheld a law that criminalizes homosexual acts, overruling a 2009 judgment by the Delhi High Court.
As a result, the guilty face a possible maximum sentence of life imprisonment. The decision not only shocked India’s LGBT community but upset rights activists across the globe.
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 one 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.”
In a public interest litigation filed by Naz Foundation (India) Trust (a non-governmental organization that works on HIV/AIDS and sexual health), the Delhi High Court, in 2009, adopted this provision, drafted by Lord Macaulay during the days of the Raj, as ultra virus of Article 14 (Right to Equality) and Article 21 (Right to Life), both Fundamental Rights guaranteed under the Constitution of India, and upheld that criminalization of consensual gay sex violated these rights.
However, on December 11, 2013, on appeal, the Supreme Court of India set aside the judgement of the Delhi High Court and stated that “…Section 377 IPC does not suffer from the vice of the unconstitutionality and the declaration made by the Division Bench of the High Court is legally unsustainable.”
Not until my teenage years did I become aware of homosexual and transgender people. I was born and raised in the northeastern Indian city, called Shillong, on the Himalayan foothills. Like most Indians, such topics never figured during discussions on the dinner table or amongst friends.
It was only at the end of high school that I first learned about gays and lesbians. I studied in an all-girls Catholic missionary school, where we were taught to be perfect young ladies.
When I was in seventh grade, an incident opened my eyes to the LGBT world. It was a usual overcast day and school had broken for lunch. During the break, two seniors hugged each other tightly and danced from one end of the basketball court to the other.
There was shock all around the school. I remember both the embracing seniors were called to the headmistress’s office and asked to apologize for their “unruly” behavior.
For the next seven days, they were isolated, as most of their friends and classmates refused to talk to them. There were whispers all around that the girls were lesbians. Curious, I looked up the word in the Oxford dictionary.
I am still in touch with both of them through social media, and currently they are married to their respective husbands. To date, I don’t know if they were actually lesbians, or it was the usual teenage confusion that many girls encounter about their self and identity at that age.
The Indian mind-set is deeply conservative, especially when it concerns issues on sexuality and social morality. The society is not open about homosexuality and, therefore, increases the pressure on any gay or lesbian to come out in the open. Many continue to live their pseudo lives for fear of family or social rejection.
One of my gay friends, Bony Mitra-Lear, who is from Kolkata and is currently living in New York, had the courage to openly declare that he is gay. When I asked Mitra-Lear about how he dealt with his family, my friend said it was very difficult initially.
It took his parents a long time to come to terms about his sexual orientation and accept him for what he is. He is currently married to his American partner, Mikel, and they share a loving bond that exists between any other married couple.
Even in Western society, gays still struggle with their sexual orientation and identity and find it difficult to be frank with their parents. However, Mikel shares a loving bond with his family and came out in the open many years back while he was in his late teens. But his parents chose not to attend his wedding ceremony in the New York City Clerk’s Office.
New York became the sixth state in the U.S. to legalize gay marriage in 2011. Since then, New York City clerks have been issuing marriage licenses and providing civil marriage ceremonies to same-sex couples. In the event of the Indian Supreme Court decision, does it mean that when Mitra-Lear visits India with Mikel, he is liable to get punished?
The status of marriage that New York gave this same-sex couple is not acknowledged in India. Does that mean same-sex couples like Mitra-Lear and Mikel, who live in India, should stop loving each other for fear of complaints that they are indulging in unnatural sex?
Does the court decision not violate their freedom and rights, or are we misconstruing the judgement?
Says Mitra-Lear: “Yes, I might be considered a criminal in my own country but a gorgeous one with humanity. I am proud to be who I am, unlike those uninformed and inhuman hypocrites who are busy labelling my life.''
In December, the Indian media criticized the Supreme Court decision. It is then I came across a television interview of Justice Singhvi, where he urged those criticizing the apex court to first read the judgement before criticizing it.
I spent the next two days reading the entire judgement of 98 pages. I am not a legal expert, and my intention is not to analyze the judgement. But, what I understood from reading the ruling is that it is not intended to criminalize the LBGT community, but it is, in general, to protect women, men, and animals against sodomy and protect children from pedophiles.
Also, no one can be arrested until and unless a complaint is made against the offender by a family member or the person affected by such an action.
As a photographer, I am naturally drawn to document issues into which I may not otherwise go deep enough. The difference that I saw between the levels of social acceptance of the LGBT community here in New York and back home in India is like night and day.
It is not just about the court’s judgment, but it is more about having the courage to come out in the open and be socially accepted. It is a known fact that Asian countries take a more constricting view of homosexuality than western countries owing to their cultural differences.
In the sub-continent, there is pressure after a certain age from family and society to marry and have children and conform to the traditional concepts. One such example is of an acquaintance I met while working on my project.
Ahmed (name changed on request) hails from Pakistan and has been living in New York for 12 years. He is gay but succumbed to family pressure and married a woman, chosen by his family back home in Pakistan, and brought her to the US.
He felt suffocated in marriage, and it became worse by the fact that he didn’t come out in the open about his sexual orientation to his wife and parents. Ahmed was also riddled with guilt by the fact that he brought an innocent woman as a bride, who perhaps had many dreams and aspirations to have the perfect American life with her husband.
They finally divorced and, since then, Ahmed has vowed never to live a life with such a burden. He admits that it was easy for him to come out in the open, because he is living in the “Land of the Free” and perhaps would have never had the courage to do so had he been living in his home country in Pakistan.
There are many Ahmeds in India, and the greater South-Asian continent, who do not have the courage to come out in the open about their sexual orientation because of fear of being ostracized by society. Will the Supreme Court ruling make the lives of Ahmeds more difficult?
Although many NGOs and gay rights support groups have voiced their opinion and asserted their rights, many have come out to the streets holding gay rights marches in cities in India. The question is not just about equality, privacy, and choice, but it is also about social acceptance and respect of these individuals.