The Indian state does not want to change its mind about men who have sex with men and women who have sex with women. According to the Centre, male homosexuals are delinquent sodomists, and hence criminals. And lesbians simply do not exist. Indian law must, therefore, continue to punish such unspeakable violations of the “order of nature”. This is what the Delhi high court was told by the Centre after years of evasion and deferral. Section 377 of the Indian Penal Code will remain in force, in spite of being challenged in court by a number of non-governmental organizations. It is through a bizarre combination of bigotry and fuzziness that an archaic law against anal sex and sex with animals continues to be used in India to oppress, abuse and exploit men who choose to have sex with men. It is a law which reflects the current majoritarian view of homosexuality in India — its unthinking identification with sodomy, rape and bestiality, even when practised by consenting adults in private. The Centre still believes that section 377 guards a “healthy” society, and its deletion could “well open the floodgates of delinquent behaviour”. Such language will be wearyingly familiar to the many organizations, activists and ordinary people who have been trying to work and live — courageously, happily and healthily — against the grain of such discrimination and prejudice. They are also aware of how section 377 allows the police to physically and sexually abuse, blackmail and harass sexual minorities in India.
The Centre’s response to the court also expresses another dangerous and regressive idea. The government questions the petitioning NGO’s locus standi to approach the court on this issue, since “no one except those whose rights are directly affected by the law can raise the question of its constitutionality”. By questioning the right of petitioners to appeal on behalf of victims of injustice who might be unable or unwilling to go to court, the Centre is undermining the very foundations of civil society. This could effectively prevent the Mumbai NGO, People’s Union for Civil Liberties, from ensuring justice in the Gujarat Best Bakery hearings. Condemned to permanent criminality by the law and to invisibility by social attitudes, Indian homosexuals continue to have compelling reasons for not being able to demand openly the justice they are variously denied — within their families and communities, or in the courts of law. What the Centre’s attitude puts at stake is not just “gay rights” or “public health”, but also the very basis of a modern democracy, founded on the notion of fundamental human rights.