Some 10 years ago, at a time when the gay rights movement was yet to gain momentum in India, a medical team inspecting conditions at Delhi’s Tihar Jail reported a high incidence of homosexual activity among its inmates. It recommended that prisoners be given condoms to minimise chances of HIV/AIDS transmissions.

But the recommendation went largely unimplemented. The reason was simple, though questionable. The authorities felt that distributing condoms would amount to an admission of the prevalence of homosexual activity within the prison walls. And that they could be held responsible for promoting an activity which the law considered an offence.

This anecdote effectively sums up the way in which the law and the establishment have always looked at same-sex relationships in India. And regardless of the rising demand from several quarters to legalise or decriminalise same-sex love, homosexuality in India is far from being rid of its tag of a social and legal aberration.

Recently, the government responded with an affidavit to a petition filed in the Supreme Court by Naz Foundation ? an organisation working for the gay community and the prevention of HIV/AIDS ? urging the revision of Section 377 of the Indian Penal Code which criminalises non-heterosexual activity. “Public morality must prevail over the exercise of any private right,” the government affidavit stated, stressing that public opinion and current societal conditions did not support the legal revision.

Section 377 is a legacy of the British, which introduced anti-sodomy laws in India in 1861. It does not specifically mention homosexuality but criminalises sodomy. It criminalises anyone who “voluntarily has carnal intercourse against the order of nature with any man, woman or animal”. The punishment for what the section calls “unnatural offences” can be a prison term of up to 10 years.

Though upholders of the law say Section 377 helps to round up sexual offenders, especially paedophiles, the fact remains that it can be abused and misused to harass homosexuals. There are two ways in which the law can be misused. One, obviously, is harassment by the authorities, where couples found holding hands in a park can be picked up by the police and assaulted, and then let off in return for monetary or sexual favours.

The other type of abuse is blackmailing. “We often receive complaints from people who are threatened by their landlords, where the victim has to part with a higher rent to stop the landlord from reporting to the authorities the fact that there are too many male guests dropping in at his place,” says lawyer Tripti Tandon. “The worst problem here is that few gays have the courage to go and report the incident to the authorities for fear of being subjected to further abuse for engaging in unnatural sex,” says Tandon. Section 377, therefore, cuts like a double-edged sword.

And yet, the government seems to be of the opinion that alternative sexuality defies the natural order and so, must be shunned. It’s an argument, however, that not everyone is ready to buy. “For the past few years, the government itself has been funding programmes running on the MSM (men who have sex with men) community,” says Anjali Gopalan, director, Naz Foundation. “And then, it says that Section 377 cannot be revised when viewed in the Indian context. Isn’t that rather ambiguous?”

It probably is, if one notes the fact that same-sex love has been present in Indian society for ages. Indian mythology, if nothing else, is strewn with examples. “So what Indian context are we talking about,” asks gay rights activist Pramada Menon. “And besides, how exactly does one define public morality? It’s like saying that we are okay with corruption, and have no problems with criminals sitting in Parliament. But when it comes to giving homosexuality the nod, we seem to have our reservations,” she says.

A corollary to the controversy is the long-standing intellectual argument of what is natural and what is not. Indian law, it must be noted, is carried over largely from the days of the British Raj. In this perspective, Judeo-Christian morality was often used as a yardstick to define the moral and the immoral. Any form of sexual conjugation that did not lead to procreation was thus theoretically immoral.

Obviously, these are guidelines that no longer define modern living and ‘normal’ or ‘natural’ doesn’t any more mean what the law originally intended it to.

A little bit of practical thinking, many feel, could provide a solution to the crisis. “Recently, the British themselves amended their law to accommodate the gay community,” says Menon, referring to the new UK legislation legalising gay marriages. “So there is no reason why we should continue to be governed by a law that is dated when its original formulators have chosen to think differently.”

Nevertheless, it’s only the initiation of the legislative process that can make the difference. “And we hope things will get sorted out in the future,” says a lawyer at the Delhi-based firm, Lawyers’ Collective, which has been representing Naz Foundation in court. “Though our earlier petition filed in 2001 was dismissed by the Delhi High Court, we expect the Supreme Court to give the case a fair hearing.”

Naz Foundation has also been contemplating filing a response to the government’s affidavit, says Gopalan. A hearing has been slotted for January. It now remains to be seen if, with the onset of a new year, the government changes its views on homosexuality and the wishes of the gay community do come true.