Gay laws in India

For a Rainbow-Coloured World by Tara Kaushal

January 2014: The recent recriminalising of anal and oral sex has huge repercussions on LGBTIQ rights in India. Us optimists believe knowledge is the counter to bigotry, and I seek to evoke the empathy of the religious, political and cultural right wing by narrating, commenting and contrasting the life stories of a few gay men.

First, let me say this: Section 377 criminalises not only gay sex, but also all intercourse against the “order of nature”—a culturally and religiously coloured perception of ‘nature’ that believes sex is for procreation only, in humans like in other animals, not one that considers the complex scientific, emotional, psychological, sociocultural, etc. roots of human sexuality. Anal sex and oral sex are criminalised, even if you’re a couple (or threesome or whatever) of hetero consenting adults. Nonetheless, given that Section 377 criminalises ALL of the sexual intercourse of gay and lesbian people, and only some of the heterosexual sexual experience, the drama around the Supreme Court’s reinstating it by overturning the Naz Foundation’s win at the Delhi High Court is being seen as a gay rights issue. (Fair enough, but I’m outraged for myself too… I didn’t know I’d been breaking the law since I was 16!)

In my late teens, my closest friend was a reed thin man-woman with a big smile and a raspy voice who I met at a cyber café. The depth of experience in this person’s life made her fascinating and fun, an empathetic listener and mature advisor, and we became friends immediately despite our age gap. I took the fact that we could become friends for granted, in retrospect I realise I took the liberalness of my parents for granted.

Because, from her, and others since, I’ve heard just how hard societal and familial acceptance can be, how much internal and external strife comes from having an alternate gender and/or sexuality. While gender colours all our lives, having an alternate gender and/or sexuality means being an alternate gender or sexuality—it doesn’t just involve who you love and fuck and live with, as it should; it consumes your life and life choices, makes your experiences and interactions more complex and nuanced, and automatically sets you aside as different.

Unlike those that choose to join the Hijra community that congeals in to a family, most LGBTIQs live in the mainstream, as about 10% of the population. Within this environment, each LGBTIQ has to carve out his/her/hir/their own identity, often a lonely journey full of strife; negotiate puberty, adulthood and sexual shame; and, hopefully, find love.

They would like to be accepted in the discourse of ‘normal’, under the cover of cultural and legal sanction, towards a world where they are not first defined by their gender and sexual identity. In that you can replace the words ‘gender and sexual identity’ with ‘race’, ‘class’, ‘femaleness’, ‘disability’, etc the rights of the LGBTIQ community are clearly a human, equal rights issue. The world over, we’re being all politically correct and apologetic for racism, classism, misogyny, disabled-bashing—all persecution for things people didn’t choose but were born with—so one must be mindful that that new research claims homosexuality is biologically determined. And even if isn’t (such a view is too simplistic methinks), there are loud calls from the growing liberal brigade for being tolerant of individual choice—to practice a religion of ones choice, to be cultural or not, for women to wear the clothes we want to, or to be gay. Gay rights are human rights.

And you don’t need to be gay to empathise. You just need to not be a bigot.

Same-same but Different

In the little bubble Sahil and I inhabit, comprising, for the most part, anglicised liberals in the media and arts, we have a lot of friends proud of their LGBTIQ identity. Two Australian gay couples who’ve had a child each through Indian surrogates are dear friends.  

In the midst of all this sermonising for and against gay rights recently, I reached out to several of them. A common belief is that the only barrier to accepting homosexuality is education and understanding. "There are so many misconceptions about gay sex and life,” one friend told me. “We are not a stereotype or crazy, an infectious disease or predatory. We are just people.”

The Difficult Journey

Even for us heterosexuals, sexual awakening in the teen years is a complex time. It hits us in a blaze of hormonal changes, stimulates our bodies, colours our minds, all the while leaving us to negotiate our cultural mores and environment. This is when, emotionally and socially, the heterosexual journey is not fraught with nearly as much loneliness and strife as ‘coming out’ is for those of alternate sexualities. 

On a long Skype call as he got ready for work, Ashok Bania, 32, tells me that he realised he was attracted to men at adolescence. “I used to get tingly when I saw guys,” he says matter-of-factly, and enjoyed what he calls a “single isolated event” of sexual experimentation with an older teenager boy.

Ashok Bania.

Ashok Bania.

Ashok, an IIT Madras-IIM Lucknow alumnus based in San Francisco since June, is the son of an Assamese IPS officer and comes from humble beginnings. He grew up in and around Guwahati, before finishing his bachelors and masters in Chennai. “No one spoke about gays in Guwahati. A little information in a book in my convent school library and an article in the Reader’s Digest were what made me realise I was not alone.”

In college, Ashok was popular, and fit in by overtly talking about girls and watching straight porn with the boys in an environment where gay stereotypes (from The Wedding Planner and Father of the Bride) were ridiculed, all the while indulging himself in his “accurate sexuality” in private. It was 1999, when chat rooms were all the rage, and in these he learnt more about being gay, hoping nonetheless that “this is a temporary phase that will go away: it’s a fad, a hormonal imbalance.”

It was at IIM, at age 23, in love, for the first time, with a (straight) close friend, that his long-standing deception first started gnawing away at Ashok. Depressed, he ended up in media houses, first in Delhi for six months, and then in Mumbai for two years—“I heard things about gay life there. But being gay meant you had to be underground, and that scared me.”

And despite a few people asking about it, Ashok could never admit he was gay. He would be guarded when he drank, lest he spill his terrible secret. He had resolved to carry his burden alone, and never practice homosexuality. “In college, I had a friend who introduced his parents to his girlfriend. That made me cry… I didn’t think I’d ever be able to do that.” Ashok didn't even start reading about living a gay life until he came out, as he “didn’t know that was even an option.”

He laughs as he tells me his story now, but can you imagine the pathos of this isolation and sexual repression?

In fact, he didn’t tell a soul until he was 28, when, after a couple of years of resisting pressure from friends to get married and rejecting prospective brides this parents sent his way, “this amazing girl appeared”. She came down from the US to meet him in Bengaluru, where he was then working with AOL. “I felt trapped. A line from Dexter (the anti-hero from the eponymous TV series), ‘You cannot be honest to someone if you’re not honest to yourself’ played on my mind. I couldn’t eat or sleep for five-six days; I lost weight. I’d have palpitations when I’d meet her. I was playing out scenarios about getting married and having kids, and panicking at the thought of having sex!”

At this nail-biting now-or-never juncture, Ashok finally called his sister at 3 AM to tell her the truth: he was gay. And then he told the girl.

Onwards to Happiness

When he awoke the next morning, though, Ashok’s thoughts weren’t with the girl whose heart he had just broken. Instead, he felt elated, like a demon had left him, and says he felt so free he “could have walked naked to the office!”

Anyone who has kept a secret a long time, let alone for years together, will appreciate the happiness and liberation that comes from truth. As a culture, we have a complicated relationship with truth. On the one hand, our culture studies classes in school teach us not to lie, we are taught to look up to Mahatma Gandhi the apparent paragon of virtue and various swamis; on the other, we propagate a culture of silence and hypocrisy to conform to society and tradition.

“You have to be true to yourself or you will always be a liar. It is not what you should have to chose for your life.” Slowly, Ashok started telling the people closest to him—his friends, roommates and sisters—in what he calls the “coming-out disease”. His father, who he told on an evening walk, said nothing more than “Oh” at first, but later told him to be safe and careful. Telling his mother, the closest person in Ashok’s life, to whom he had lied for many years, was a different matter. She went through stages of grief and denial, proffering jadi-bootis to cure the disease. It was only in six months that she broke her silence on the topic, and began to follow stories about LGBTIQs in the Assamese-language press.

There is no new argument to offer to upholders of culture and religion than ones heard before—the choices of consenting adults, the fact that homosexuality is natural or that it has been accepted in our culture from times immemorial. (I don't believe current laws and social conventions should derive from ancient culture, mythology and history, but these people certainly do, hence this point.) A few mornings ago, I had a conversation with one such person from my dreaded and amusing ‘other’ messages folder on Facebook—because I have a 'one idiot at a time' philosophy; besides, I was writing this column, right, so wanted to explore the other side's POV.

Quotable quotes, almost verbatim saving for correcting his English:
“Sex is only for giving birth to a new life not for enjoyment.”
“Always private things must be kept in a private place… So making it an issue is making no sense, no one is going to check in everyone’s private life who is having homo sex.”
“If we start these sex issues in public then god knows what will happen in the next ten years… Making these issues public can badly affect kids and teenagers. Just tell me whenever someone thinks about sexual matters, what does s/he feel?”
(Me: “When you think about sex, you feel aroused. When you think about sexual rights, you don't feel aroused. Is that your concern, that the law will turn people on?!”)

The culture they seek to preserve is not one of greatness or happiness, but of falseness and hate. To make something natural against social mores can only mean more people living unhappy lives in enforced hypocrisy. Case in point: as a parting shot, the culture protector who had declared: “For me sex is not so important, love emotion is much more important than sex,” said, “I am looking through your pictures. They turn me on."

The paranoia about the spread of a gay pandemic is not actually about more people becoming gay; it is about more people admitting to being gay. Says Ashok, “I never had any role models. If I had known just one person—someone’s uncle or brother—retrospectively, I might have had enough courage to say ‘Hey, I’m different.’” While laws and cultural pressure are essential to prevent things that are truly horrific from happening in society (rape, sex crimes, murder, communal violence), let it not stand against the happiness of two consenting adults.

In contrast to Ashok, Rohan Rita Agnani, 23, a Mumbai-based fashion designer from Vadodara, Gujarat, who comes from an “open-minded network”, never tried to mask his sexuality through his growing years. While he faced problems, including severe bullying at school, for not moderating his behaviour, it made coming out to his parents “the easiest thing”. They had “social concerns”, about how people would behave and react towards him, but said, “As long as you are happy.” When I opine that his coming-out story is the simplest and least angst-ridden one of all those I have spoken to, he says it is confidence from family and friends that has made it so.

Rohan’s partner of a year and a half, 31-year-old Avil D’souza is a senior manager at a media company. The couple met online in 2012, in the second month of Rohan’s two-month internship in Mumbai. When he returned to college in Gandhinagar, Avil visited him almost every week until graduation. A bisexual who had never had a long-term relationship before, Avil only came out to his mother eight months ago, a month before he entered into a stable domestic partnership with Rohan. “Not all of the family knows. With many, it didn’t need to be said out loud: now, they just invite me over saying, ‘Come with Rohan.’ It’s accepted in so many words.”

Avil D'souza & Rohan Rita Agnani.

Avil D'souza & Rohan Rita Agnani.

It is no surprise that Rohan and Avil have had less tumultuous journeys into sexual adulthood than Ashok, owing to their more exposed and liberal backgrounds. About a decade ago, I met two guys from Meerut, roughly my age, while rescuing a calf on a Delhi road. They were in Delhi to give entrance tests for medical colleges, and one ended up in Russia instead. A few months later, he sent me a pained email—about how he was attracted to boys and sexually active there; how he could only confide in me, an empathetic stranger, and no one else; how he was terrified of coming home to social expectations he would be unable to escape. I replied but we lost touch, much before Facebook existed to tether us together, and I often wonder what became of the boy whose name I cannot remember… Did he stay on in Russia to face persecution under its anti-gay laws? Did he return and tell the truth or run away, or is he married with children somewhere in UP, living an unhappy lie? Who knows.

The Freedom to Be

Once Ashok came out, tingeing the liberation and happiness was an increased expectation from life. Where once he was resigned to lonely celibacy, he was now wondering where love was.

While engineer-MBA Ashok works in the IT sector, Avil works in a media company and Rohan as a fashion designer in a big corporation (“a cliché,” he laughs). Ashok has been openly gay in his last two workplaces in India, AOL and Yahoo! in Bengaluru, and says he faced a little gossip but no discrimination—a factor of the American culture of these companies and the education levels of his colleagues. While Avil has told his boss, other colleagues are on need-to-know basis. I start to say that the media is a more liberal industry, but he cuts me off… “Even here, there is discrimination against feminine men; those who fit the gay stereotype of the limp wrist and girly voice are subject to childish high-school jokes.” (He doesn’t.) Rohan admits that a corporate environment is never easy. “Of course, prejudices and preconceived notions are not as bad as they have been in the past. Communication breaks barriers.”

While engineer-MBA Ashok works in the IT sector, Avil works in a media company and Rohan as a fashion designer in a big corporation (“a cliché,” he laughs). Ashok has been openly gay in his last two workplaces in India, AOL and Yahoo! in Bengaluru, and says he faced a little gossip but no discrimination—a factor of the American culture of these companies and the education levels of his colleagues. While Avil has told his boss, other colleagues are on need-to-know basis. I start to say that the media is a more liberal industry, but he cuts me off… “Even here, there is discrimination against feminine men; those who fit the gay stereotype of the limp wrist and girly voice are subject to childish high-school jokes.” (He doesn’t.) Rohan admits that a corporate environment is never easy. “Of course, prejudices and preconceived notions are not as bad as they have been in the past. Communication breaks barriers.”

Ashok had considered moving to the US straight after his stint at IIT-IIM, something I imagine would have been easy for the genius-type that he is. In retrospect, he says, life would have been much better had he done so. Cities like Berlin in Germany and San Francisco in the US are mecca for gay people, with liberal political and cultural environments, and frequent work visits to SF since 2007 when he joined Yahoo! in Bengaluru exposed Ashok to gay partners, husbands and a couple married for 25 years, though when he first saw men holding hands and kissing on the streets, his heart would skip a beat out of fear. He finally moved within Yahoo! six months ago.

One of Ashok’s mother’s primary contentions was that he would die alone, with no partner or children, and had even suggested that he have a ‘lavender wedding’ with a friend—a sex-free marriage for children. For four months now, he has been with Christopher Contos, a 40-year-old Greek from Milwaukee living in SF for 15 years, who he met on a dating site. “There’s no rulebook about falling in love,” blushes Ashok. “I’ve met his parents, he’s spoken to my dad. We talk about our future.” Ashok, who has a strong maternal instinct, also wants children.

On his way to a happy ending, I ask Ashok whether he saw this happening in India. No, he says, “The pool of gay guys who are out in India is so small that everyone practically knows each other. In Bengaluru, those who are out are either very young, 17-18 years old; older ones are closeted, complex and weird.”

I see his point. While in a manhunt stage of life, I would often lament that, despite having access to a majority, the straight male demographic, I was still hunting for the right guy, seeking minute specifics. While I understand that living an alternative gender/sexuality is a uniting ‘otherness’ experience often stronger than other sociocultural, economic, class, etc dissimilarities, being alternately inclined seemed to be the only criteria uniting the limited pool on the Delhi gay party circuit—I met a flamboyant cross-dressing tailor from a village near Jabalpur (married, with three kids) at the same party as I saw one of the country’s most famous designers. “Like straight people, gays too have ‘types’!” Ashok stresses, giggling.

The love of Rohan and Avil, on the other hand, continues to be limited by the laws and culture of the country they have not escaped. Rohan describes an odd sense of insecurity, even on a normal day: “Avil and I were celebrating our one-year anniversary at a club in Andheri, and kissed at 12. We were pushed out of the place and had to defend ourselves, and were followed by eight bouncers.”

While Ashok acknowledges the hate crimes against LGBTIQs in the US, he says, “In India, I could not have had a legitimate life. Here I can introduce my boyfriend, have a structure. And being able to have children is something I don’t see happening there.” Avil would love to marry Rohan, and lists the advantages—to celebrate, validate and publicise a partnership; for the ease of looking after each other; and for the practical things like life insurance, home loans and joint accounts. “But marriage means migrating,” he says, laughingly dismissing the possibility of legal marriage for gay people—something that is a taken-for-granted reality for us heterosexuals—in India in our lifetime.

Section 377: Bigoted Wrongs & Human Rights

Avil says the recent Supreme Court verdict “technically, doesn’t change anything” in his life—“we’re not really having sex in the open!” But the recriminalising of gay sex impacts the right to love and live legally, and the law as well as the dialogue it has sparked has huge sociocultural ramifications.

More than we acknowledge, laws have the power to guide social mores. For instance, when Sahil and I started living together, my family did not say much, though I know they were uncomfortable. Then the courts started issuing verdicts in favour of live-in relationships. In this subtle statement, my grandfather expressed everything—his previous discomfort, the fact that he must have grappled with it in light of my rational arguments pro the arrangement, as well as how the legalisation made him feel better and comforted: "Theek hai," he said at the end of a 'shaadi kab kar rahe ho' conversation, "Aab toh Supreme Court ne bhi live-in relationships ko legalise kar diya hai."

“The people who do get affected are those who are not out at their age and stage in life. A confused 14-year-old will feel socially and legally outcast, and the government endorses and condones their isolation and persecution!” continues Avil. Ashok too emphasises that it is important to reach out to the individual in the closet, as well as families and societies. In an interview to Gay Star News, Aditya Bondyopadhyay, a lawyer and director of Adhikaar, a LGBTIQ human rights organisation based in Delhi, says that there has been a recent spike in violence against members of the community, both by the police as well as by plebeian folk, “a direct outcome of the wide debate and news that followed the Supreme Court judgement.”

An environment that forces people to remain closeted affects the individuals, their families and spouses, of course, but the inability to reach MSM (short for ‘men who have sex with men’) also cripples work towards AIDS prevention, a key point in Naz Foundation’s petition.  

Most important in this culture versus laws debate is the acknowledgement that the legal system of the country should pick the side of justice and reform, as it has done before. Once upon a time, it chose to outlaw integral practices of our culture and religion, sati and dowry. As it should, the Prohibition of Child Marriage Act, 2006, triumphs in conflict with Muslim personal law, that allows the age of puberty to be considered marriageable age. The system should also prioritise individual choice: if Baba Ramdev and his ilk are allowed to practice a patriarchal lifestyle that is offensive to certain demographic groups in a democracy, others should be afforded the same respect.

The Way Ahead

After the Supreme Court’s verdict, the English media has been pointing out how the stand against consensual homosexuality has united the right-wing bigots across religions, cultural positioning and political affiliations. What it has also done is unite the rational liberals with the LGBTIQ community across the country, lead by pretty much all the English media...

This is a powerful positive collection. Despite the liberals’ deriding, I realise that the anti-homosexuality stand of those like the BJP won’t hurt them much at the vote bank at the moment. But it’s interesting to note that our numbers are not insignificant and are growing, and we’re certainly not a quiet bunch, as noted at the anti-377 marches and social media uproar. I don’t know about you, but I died of shame last month, when a US court granted a gay couple from Haryana asylum for fear of persecution and imprisonment in India. Is this really where we want to position ourselves on the culture and human rights’ map? India has a dynamic young population, coming to metros, seeking education, questioning things of the past, and changing themselves in a changing world. An open world is the way of the future; it is time our leaders embraced it.

To my mind, the most important change brought about, first by the Delhi Gang Rape and now by this regressive ruling, is conversation. If Anna Hazare and then the AAP have mainstreamised the battle against corruption, these events are reversing the apathy we’ve had towards sexual oppression in our country. As noted before, every single person I spoke to from the LGBTIQ community believes the only reason for homophobia a lack of awareness, and, individually and collectively, each of these openly gay men has decided to increase communication, if not overt activism.

Equal rights activist Harish Iyer, considered one of the most influential gay people worldwide, has “stirred quite a few conversations and created quite a few ripples” with the recent Placards for Change campaign, carrying and encouraging others to carry short pro-LGBTIQ messages around Mumbai. When I spoke to Rohan, a day after the heart-breaking verdict, he was trying to stay positive. “No battle fought is easy. Even if we were victorious today, people are not going to change—the majority of India wouldn’t still support us. It’s better to convert people than the government.”

In some senses, there is activism inherent in simply living an openly gay life. By setting an example, these courageous men and women are changing the way an entire population thinks and acts, and partaking in its emotional evolution. Rohan says, “I make people understand that I’m not different. My school bully recently called to apologise to me. People change.”

Ashok, who describes himself as a “bubble-gum pink, happy person” (a far cry from the angst-ridden and depressed man guarding a big secret methinks!), says his version of activism is to go around telling people: “I’m gay. You love me. So why should it change right now?” He believes not everyone supports 377, only a few powerful people do—when he recently talked about his sexuality on Facebook, he was surprised at the support and congratulatory messages. Most people are uninformed, not bad.

“I have been lucky,” says Ashok. “My coterie is from IIT-IIM, and has been open to talk about homosexuality. I got a chance to move out of India because of my career. Not everyone can.” He believes people in India must be exposed and sensitised. “Make yourself heard. Tell ten people. Spread the message.”

The preservers of our culture of silence better watch out.

An edited version of this article appeared in Governance Now in January 2014. 

Ashok and Christopher got married in 2016. Avil and Rohan are still living together.