In 2000, the Law Commission of India issued its 172nd report - a review of rape laws in the country - within which it recommended the deletion of Section 377, Indian Penal Code. In 2002, a public interest litigation (PIL) filed by the Naz Foundation, an NGO that works on sexuality, health and gender, challenged the same law - an archaic 150-year-old provision that criminalizes consensual, private sexual activity between same-sex adults on the grounds that it is "against the order of nature". Just last week, Section 377 again came under attack by the Planning Commission in its official recommendations to the prime minister for the 11th Draft Plan.
At first sight, a trend seems to be emerging within the echelons of formal justice in this country. A trend that finally seems to be hearing what activists have long been screaming - there can be no ethical or legal justification to deny full citizenship, rights and dignities to its citizens on the basis of their sexual preference. Yet, why is it that successive governments and the National AIDS Control Organization (NACO) remain either virulently homophobic, or hypocritically silent? Can the executive and the legislature be so divergent in their thinking, or is something else at play?
In response to a PIL filed by the Naz Foundation, the National Democratic Alliance (NDA) government had responded in 2004 that it opposed Section 377 because Indian society, by and large, "disapproved of homosexuality" and this disapproval was strong enough to justify its criminalization. They further argued that legalizing homosexuality would simply be the equivalent of slowly letting go of all moral control in our societies, and be a slippery slope towards deprivation. NACO continues to fund HIV/AIDS prevention work with men who have sex with men, but has, in the three years since the petition was filed, apparently not seen it fit to even bother to reply despite repeated entreaties by the court and by activists.
These arguments are not new - we have heard them many times before in response to the women's movement, widow re-marriage and any other movement that seeks to challenge the status quo, especially when it comes to the 'private' terrains of gender, sexuality and the body.
Yet, the response exposes a telling difference in the way politicians and judges think. The government's response does not speak of equality, or rights, or the constitution. It speaks of public morality and of social attitudes. Its argument rests on the logic that social disapproval is sufficient to criminalize an activity.
Let alone the absurdity of this logic in a country that banned dowry and caste discrimination - though they still hold wide (if now more silent) public moral sanction - or that the role of law is to lead social opinion under the guidelines of equality rather than follow what it claims is majority opinion, the important point here is that we must, as activists and concerned citizens, learn that our responses to the government's homophobia must also be in the same language.
The Law Commission and the Planning Commission members are not directly-elected public figures. While it is true that they too need to balance political goodwill and play power politics, they are certainly not as accountable to the general public as, say, the NDA government. With radically different stakeholders, the lawyers are able to respond to Section 377 in an entirely different way than the public face of the government. What does this tell us? The obvious conclusion stares us in the face - the fight against homophobia cannot be won in the courtroom alone. It has to be waged and won by challenging the perceptions surrounding gay, lesbian, bisexual and hijra lives in larger society.
Movements have long tended to separate judicial reform from public advocacy that seeks to change mindsets. What the government and, indeed right-wing movements in general, seem to understand so clearly is that the line between the presumably objective space of the law, and the amorphous space of civil society, is often non-existent. The fact that the NDA government's response to the petition uses social values to justify criminal offences shows us this.
The Planning Commission's recommendations, therefore, are a first step in the right direction to equity and justice for all. But they are not enough. As long as they remain within the formal echelons of the corridors of government and the judiciary, they never will be enough. It is the silence around sexuality in our society that is passing judgement on us, not just the existence of Section 377. Unless this debate is brought out into the open, unless the government can no longer claim that Indian citizens do not care if gay people are harassed and beaten by the police, or discriminated against in the workplace, or made to feel sub-human in their own country, we will not win this battle, even if the courts strike down Section 377 tomorrow.