By Makepeace Sitlhou (@makeysitlhou) / Sr. Web Editor, Amnesty International India

Pic: Shilpa Raj
Pic: Shilpa Raj

In late March, India voted in the UN General Assembly against extending marriage benefits to same sex couples employed in the UN. India’s vote sadly comes as little surprise, when it has a law that criminalizes consensual intercourse between same-sex adults. Of the others who also voted in favour of the Russia sponsored resolution, China (where homosexuality is not illegal) is known to frown on homosexuality while Pakistan, Iran and Saudi Arabia have criminalized same-sex relations.

Just last September, India abstained from voting on a United Nations Human Rights Council resolution to update a 2012 study on violence and discrimination on the basis of sexual orientation and gender identity with a view to sharing good practices and ways to overcome violence and discrimination.

It’s not surprising that India didn’t vote in favor of a resolution that ultimately seeks to arrive at ways to combat violence and discrimination faced by a community. After all,we don’t even expressly acknowledge discrimination based on sexual orientation after the January 2015 Supreme Court judgement that upheld Section 377 of the Indian Penal Code, which criminalizes same sex relations. That India decidedly took a negative stand, in the company of some infamously homophobic countries, raises several questions that it could have avoided by abstaining on this vote. The government, of course, has denied that the UN vote was ‘anti gay’. MEA Spokesperson Syed Akbaruddin told The Hindu “ “It was a complex issue of whether nationals of a state should be governed by their laws or others’ decisions”. But this vote is only the tip of the iceberg in the government’s prejudicial attitude towards LGBTQI communities.

LGBT rights gaining political importance

Last year, the run up to the 2014 parliamentary elections saw prominent parties committing to decriminalizing homosexuality. The Indian National Congress (INC) and Communist Part of India (Marxist) included the repealing of section 377 in their official party manifestos. At the time, Bharatiya Janata Party members like Rajnath Singh strongly backed their party’s support of the judgment, calling same-sex relations “unnatural”.

In the months following the general elections, some members of the BJP intermittently came out in support of repealing section 377. In a meeting of about 250 LGBT people and their families in Mumbai, BJP MLA Ashish Shelar spoke about the pressing need for decriminalizing consensual sex between two adults. The then Union Health Minister Harsh Vardhan said, “Everybody, including gays, has human rights. It is the job of the government to protect them”.

State bats for welfare, without dignity

A Supreme Court judgment in April 2014 legally recognized transgender people’s rights, including the right to self-identify, irrespective of whether a person undergone sexual reassignment surgery. (While the judgment acknowledges legal matrimony for transgender people, it does not comment on their sexual relations within the framework of a legal marriage).

Three months after the judgment, though, the Centre asked the Supreme Court for a ‘clarification’ through the Ministry of Social Justice and Empowerment. In its application for clarification and modification of the judgment, the Union of India stated that lesbian, gay and bisexual people could not be included in the category of transgender people, because being lesbian, gay, or bisexual was based on the sexual orientation of a person, “while the term “transgender” has to do with a person’s own deep sense of gender identity.”

At the launch of the Goa State Youth Policy in January, the Sports and Youth Minister of Goa, Ramesh Tawedkar said that the government would open centres for LGBT youth to “cure” them through training and medicine – a remark that came under fire, which he later retracted. If one were to even dismiss ministers like Tawedkar’s remarks as flippant, it’s much harder to ignore the conscious moves to censor homosexual relations on screen. Recently, the Central Board of Film Certification has muted the word ‘lesbian’ in Dum Laga Ke Haisha, removed a sex scene between two women in Margarita With A Straw and refused to clear ‘Un-freedom’, a film on a lesbian love story, for theatrical release. Though the Revising Committee decided it could be certified “A” with cuts, the Film Certification Appellate Tribunal upheld the decision of the Examining Committee.

We’re homophobic and we know it

Despite their legal recognition, even transgender people continue to face harassment from the police, who are known to use Section 377 against them. In November last year, the Bangalore police detained more than a hundred transgender people at a beggars’ colony in the city under the Karnataka Prohibition of Beggary Act, 1975. According to queer rights activist Akkai Padamashali, 47 transgenders were dragged out of their homes and taken arbitrarily from the streets, regardless of whether they were begging at the time. Section 36A of the Karnataka State Police Act empowers the police to arbitrarily detain “eunuchs” for ‘objectionable activities’ like begging, a direct violation of articles 14 and 15 of the constitution, which guarantee equality before the law and prohibit discrimination.

Data from the Ministry of Home Affairs reveals that a total of 750 cases were registered under Section 377, and 587 arrests made, from January to October 2014 alone, although it is hard to ascertain how many of the cases involved same-sex intercourse between consenting adults. Hyderabad based non profit, Telangana Hijra Transgender Samiti reported 40 attacks on transgender people from September 2014 till February 2015. Human Rights Watch reported that in many cases, police officials refuse to register complaints.

While speaking out against Section 377, the Law Commission Chairman Justice Ajit Prakash Shah said, “Consequences of the laws in our country on gay sex include damage to the psychological well being of homosexuals, encouragement of violence and facilitation of police harassment and discrimination against the LGBT community.” In cases that do not get registered, members of the community are often blackmailed or abused by the police themselves.

As per a recent report in Reuters, Humsafar Trust documented 500 reports of abuse of LGBT people in Maharashtra, Goa, Madhya Pradesh and Rajasthan in 2014. Not to forget the tragic case in 2010 of Shrinivas Ramachandra Siras, an Aligarh Muslim University professor who was filmed engaging in consensual sex with a man in his home. Despite the 2009 Delhi High Court judgment, the university suspended the professor after the incident broke out and asked him to vacate the house allotted to him.

During a visit to India earlier this year the UN Secretary General Ban Ki Moon accused India of fomenting intolerance through the ban on same-sex relations and warned that “criminalizing consensual same-sex relationships violate basic rights to privacy and freedom from discrimination”. India needs to clarify its stand on discrimination based on gender identity and sexual orientation and, more critically, it needs to clarify its stand using the constitutional framework and not empty arguments of the LGBTQI community being a “miniscule minority” or against Indian culture.

While the welfare of transgender people (if not the LGBTQI community as a whole) is an important and urgent undertaking, any amount of reform would only be token unless the government also prohibits all discrimination based on gender identity and sexual orientation. Incidents like the Bangalore police ‘beggary sweep drive’ targeting transgenders or the inhuman interrogation of a transwoman in Hyderabad reflects our deep seated societal prejudice. A prejudice that finds legitimacy in a homophobic law, and which policies limited to welfare schemes do not adequately address.

Unlike Russia, where private homosexual relations were de-criminalized in 1993, India does not have an anti gay propaganda law. But the government’s apathy and negligence towards cases of discrimination and extortion faced by LGBTQI individuals do not show the making of an emerging global leader. After all, you are known by the company you keep.