India same-sex relations: Will top court decriminalise gay sex?

A five-judge bench of India’s Supreme Court began hearing a challenge to a gay sex ban on Tuesday.

The top court recently ruled that privacy is a fundamental right, raising expectations that the panel will overturn the law criminalising consensual sexual relations between adults of the same sex.

Activists say the law banning homosexuality is used to intimidate, blackmail and extort money from gay people.

Homosexual acts are illegal in most of India’s neighbours, including Sri Lanka, Pakistan and Bangladesh.

The Supreme Court hearing could last up to two weeks. 

Here is what you need to know:

What does the current law say?

In December 2013, the Supreme Court reinstated a colonial-era law that prohibits homosexual sex.

According to Section 377 of the Indian Penal Code, a 155-year-old colonial-era law, a same-sex relationship is an “unnatural offence” punishable by a 10-year jail term.

Gay rights groups say homophobia is deeply entrenched in India.

The current law is “like a sword over the heads of people”, said Anjali Gopalan, executive director at the Naz Foundation Trust, which campaigns against the legislation. “This law has been used to constantly harass the community.”

How many people could this affect?

About 2.5 million Indians identify as gay, according to government figures from 2012. But this data only takes into account those who have declared their sexuality to the health ministry.

Not everybody is willing to risk social ostracism by admitting their sexual preference, and the real number might be much higher, say activists.

Indian society is still not ready for this. If it was ready, the call would have come from the public and it would have been enacted through public pressure in parliament.

by Desh Ratan Nigam, a member of the Rashtriya Swayamsevak Sangh, the ideological parent body of the ruling BJP

In a 2009 ruling, the Delhi High Court decriminalised same-sex relations, describing Section 377 as discriminatory. 

“Equality, privacy, dignity were used as tools by the Delhi High Court then to strike down Section 377 as unconstitutional morality,” Supreme Court lawyer Zoheb Hossain told Al Jazeera.

But opposing petitions from social and religious groups urged the Supreme Court to reinstate the law. 

In 2013, the top court reimposed the ban.

“Courts are not supposed to take a moral stand. They are bound by constitutional morality,” Hossain said. 

Who’s challenging the law?

Several individuals and organisations have filed challenges.

“The Supreme Court will be reconsidering its own judgement which was delivered in 2013,” lawyer Hossain tells Al Jazeera. 

The bench is headed by Dipak Misra, the chief justice of India.

The case of LGBT activist Arif Jafar, who was arrested under Section 377 in 2001 and released after 49 days, is among the petitions being examined by the Supreme Court. He claims he was beaten in jail.

In 2015, 1,347 cases were lodged under Section 377. In 814 of them, the victims were children, according to National Crime Records Bureau data. 

Who opposes decriminalisation?

Not everybody in religiously conservative India wants the law to change.

“It is not a normal thing. We cannot celebrate it. We should invest in medical research to see if it can be cured,” ruling Bharatiya Janata Party legislator Subramanian Swamy told Indian agency ANI on Tuesday.

Some argue that the matter should be legislated in parliament instead.

“Indian society is still not ready for this. If it was ready, the call would have come from the public and it would have been enacted through public pressure in parliament,” Desh Ratan Nigam, a member of the Rashtriya Swayamsevak Sangh, the ideological parent body of the ruling BJP, told Al Jazeera.

Demands to decriminalise homosexuality come from “a very small section of society”,” he claimed.

“The law can’t be ahead of its time. A particular law is made when it’s necessary and when society deems fit. The majority of India does not accept homosexual behaviour yet.”

Has the law been used to persecute the LGBT community?

Enforcement of the law is rare but there are indirect uses to harass and persecute, activists say.

“There are not many convictions, but it stops you from sharing information with the community. It stops you from doing HIV prevention work,” said Gopalan.

Dhrubo Jyoti, a Hindustan Times journalist, said the law has been misused for blackmail and extortion.

“Many gay men and women are unable to go to the police when they face threats because they fear they might themselves be booked under this law,” Jyoti told Al Jazeera.

Hossain said harassment has ranged from alleged false cases to police brutality.

“[Documents from the Delhi High Court judgement] showed false cases were lodged against homosexuals, in some cases, they were subjected to police brutalities. The … court had earlier said this law was being used to perpetuate a lot of violence on vulnerable groups,” he said.

Will the ban be lifted?

Activists are cautiously optimistic.

The Indian Supreme Court’s ruling on privacy is expected to guide the hearing.

“I am hopeful that the ban will be lifted because of the judgement in the right to privacy case. This should be a foregone conclusion but we have to wait and watch,” said Hossain.

There are various identities that make us - Dalit queers, Muslim queers, disabled queers. We need to talk about our caste, about our religion to understand what it means to be queer in India.

by Dhrubo Jyoti, Hindustan Times journalist

In its privacy judgement, the Supreme Court had criticised its own previous ruling on criminalising homosexuality, saying that “discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.”

Activist Gopalan said while the outcome is difficult to predict, she feels hopeful.

Will this law impact the transgender community?

Yes. Millions of transgender people live on the fringes of society, face discrimination and abuse, and are often forced into sex work.

In April 2014, India’s Supreme Court recognised transgender as a legal third gender. Despite this, Section 377 would still deem them criminals for homosexual relations.

India’s draft law aimed at protecting the rights of the transgender community is yet to pass through India’s parliament.

“India’s draft law aimed at protecting the rights of the transgender community does not acknowledge them as sexual beings, so clearly their concerns also fall under the ambit of Section 377,” said Gopalan.

How would decriminalisation help people in rural communities, and would it change attitudes?

This debate often ignores large sections of society, activists say. 

“If I am a gay man in a big city and have access to resources and power, Section 377 might not affect me too much or at all,” said journalist Jyoti.

Meanwhile, homophobia in India’s rural hinterland is often experienced more acutely.

Clearly to be 'out' in any way happens more easily in urban settings. The spaces to feel safe enough to declare your sexual identity are not available in rural areas

by Anjali Gopalan, activist

“Clearly to be ‘out’ in any way happens more easily in urban settings. The spaces to feel safe enough to declare your sexual identity are not available in rural areas,” said Gopalan.

Campaigners warn that decriminalisation will not solve homophobia. 

“The law is not always a liberator … The lives of queer people are far more complex than simply Section 377,” Jyoti said. “Many people are affected on account of their caste, religion, class position – these identities interplay. There are various identities that make us – Dalit queers, Muslim queers, disabled queers. We need to talk about our caste, about our religion to understand what it means to be queer in India.”