The Road to Decriminalization: Litigating India's Anti-Sodomy Law
Sheikh, Danish, Yale Human Rights and Development Law Journal
Late in the afternoon on an early spring day, the Supreme Court of India began hearing the final arguments that would determine the legal status of the lesbian, gay, bisexual and transgender community in India. Earlier that very week, I told my parents that I was a member of the litigation team --and that I was gay. Without warning, I found arguments from a heated family discussion reverberating in the chambers of a court of law.
These dialogues were inevitable: both the ones in the courtroom and the ones with my parents. In 2009, the Indian LGBT community took its first step towards equal sexual citizenship through the Delhi High Court's judgment in the matter of Naz Foundation v. NCT of Delhi and Others. (1) The Bench, comprising then Chief Justice of the High Court Justice A.P. Shah and Justice Muralidhar, crafted a 105-page document that is considered a landmark moment in Indian judicial history. The judgment not only empowered a historically marginalized community, but it also laid the foundation to strengthen other human rights struggles in the country with its expansive reading of constitutional rights. Yet for all the revelry that surrounded the judgment, there was an equally fierce backlash that played out across Indian television screens as advocates for the movement faced off with opponents from religious groups of all faiths and denominations. It was inevitable then, that within two weeks of the decision, an appeal was filed before the Supreme Court of India.
The conversation with my parents too, had been set into motion years before. Maybe it began with that first wave of self-acknowledgment, or the first outing (to a law school classmate, in the middle of a quiz), or even the first piece of writing I did on the issue. I still recall the forced-casual call I received from my father years ago as he inquired about "this academic piece on homosexuals you wrote which I just found online." I registered his emphasis on the word "academic," almost a plea--let it just be academic interest. Even more vivid was the look on my mother's face as I informed her in no uncertain terms that I wouldn't ever get married, "for reasons I can't explain right now." We dealt with it by not dealing with it--until, that is, the day we had to, when the implied became an expressed statement, and the option of reading between the lines disappeared.
"Homosexuality is a disease." A sentiment expressed by a psychiatrist to whom I was taken. An argument advanced before the Supreme Court of India. "Homosexuality is a part of Indian culture, and has been for millennia." Two judges grappled with this submission. Two parents struggled to reconcile themselves with this information. Progress was made on both fronts. A Rajasthani folk story was the more unlikely of submissions which seemed to make an impact on the Court. Time, plain and simple time, was what led my family to take their first tentative steps toward understanding.
I write these words at a time of uncertainty. It has been more than a year since the Supreme Court of India finished hearing arguments on the case. In the hands of a two-judge bench, Justice G.S. Singhvi and Justice S.J. Mukopadhyay, lies the question of whether the lesbian, gay, bisexual and transgender community in India will continue to remain outside the specter of criminality--or be dragged back into it. An uneasy anticipation has descended upon the LGBT community as all eyes turn toward the Supreme Court, while tentative action plans are made depending on what way the judgment will go. Uneasiness characterizes the silence between me and my parents too, as we push the now-acknowledged issue of my sexuality to the background of our conversations.
We don't know when the judgment will be out, and we can't really predict which way it will go. What then is this Note hoping to achieve?
I'm attempting to capture a moment of uncertainty in the LGBT struggle in India. …