India's LGBTI community is fighting over the right way to achieve better justice. Questions about homosexuality and transsexuality are a complex amalgam in India, made up of law, culture, tradition, religion and living environment.

Abhijit Iyer Mitra is annoyed. Annoyed at the official homosexual representatives in India, who he feels don't represent him. "I'm gay and I have never been discriminated against in my life," he rants. "I have a career in security policy, I've kissed my friends in public and nobody bothered us. There is no active homophobia in India," says the 39-year-old from Chennai. This sounds surprising for a fleeting observer. Doesn't the Indian penal code include Paragraph 377, which makes homosexuality a crime? And didn't the highest court repeal a judgement made by the high court in Delhi in 2013, which declared the Paragraph unconstitutional?

A complex Amalgam

So now we're in the middle of a complicated melange, because questions about homosexuality and transsexuality (abbreviated as LGBTI: Lesbian, gay, bisexual, transgender, intersexual) are a complex amalgam in India, made up of law, culture, tradition, religion and living environment.

And so there isn't only a fight about how the current law is interpreted, there's also a discussion about whether the strategies of the LGBTI movement in the West can be applied to this country. Quite a few people are of the opinion that the situation for gays, lesbians and trans people in India cannot be compared with Europe and America because of the different cultural context.

So one by one: A "gay paragraph," such as Paragraph 175 in Germany (which was repealed in East Germany in 1957 and was only repealed in reunified Germany in 1994), doesn't exist in India. Unlike Paragraph 175, which explicitly prohibited sex between men, Paragraph 377, which was introduced by the British in 1861, only penalizes sexual activities "against the order of nature." However, this is often interpreted to mean homosexuality.

Paragraph 377

Yet, unlike in West Germany, where, according to the Federal Anti-Discrimination Agency, more than 50,000 men were sentenced to imprisonment for several years on the basis of Paragraph 175 since 1945, India's Paragraph 377 was as good as never utilized.

"Since 1870, there have been about 40 convictions, but they were all cases of rape," says Abhijit Iyer Mitra. "If a man is the victim of rape, there isn't any other legal recourse he can take besides invoking Paragraph 377," bemoans the research fellow at the Institute of Peace and Conflict Studies (IPCS) in Neu-Delhi.

With that, it's clear at least, that things aren't at their best for India's gays, lesbians and trans people. While trans people were recognized to be able to identify with a "third gender" on official documents, following a progressive judgement by the highest court in 2014, representatives and allies of the LGBTI movement have been fighting for years to abolish Paragraph 377.

Decriminalizing consensual sex

One of them is MP Shashi Tharoor. He suggested amending Paragraph 377 to decriminalize sex among consenting adults in the Indian parliament, Lok Sabha, in late-2015.

"Even if Paragraph 377 isn't utilized often, it's an instrument of harassment, discrimination and oppression of sexual minorities in India and it's got to go," Tharoor said, who is also known internationally for being an author and former Under-Secretary General of the United Nations (UN).

Tharoor's initiative, which was struck down by the governing Bharatiya Janata Party (BJP), was a reaction to the declaration of the highest court in 2013, which decided that the question must be settled by the parliament, rather than in the courts.

"However, because of the prejudices of some of the MPs, there will arguably be no change to the law as long as the BJP is in power," Tharoor laments. And yet he's also intentionally overlooking that his own oppositional party, Indian National Congress, has shown little interest to date in the matter, even though the party leadership, under Sonia Gandhi, recently declared itself in favor of abolishing Paragraph 377.

"No government has been especially helpful yet," says Anjali Gopalan, director of the Naz Foundation, a non-governmental organization, which is also campaigning to abolish Paragraph 377. "That's why we went to court."

Using precedence to reach a goal

In short: The situation has stalled because nobody dares to advance it out of consideration for the conservatives. This is exactly the reason why Abhijit Iyer Mitra is proposing another strategy. "I'm obviously for equal rights, but we have to be smart in how we proceed," he says. It would be counterproductive in the current situation offer full-throated remarks to the media. "Some people seem to be more concerned with their appearance than with a solution," he complains.

Instead of launching public campaigns, he proposes forcing the courts to consider precedence regarding two questions that have to do with Paragraph 377. "On the one hand, it's totally unclear what sexual activities "against the order of nature" means; on the other, the law is hardly enforceable because it's very hard to tell what happens in peoples' bedrooms.

The latter could be a reason that people are hardly ever convicted on the basis of Paragraph 377, which is the reason some organizations sat that in India, homosexuals being threatened with lifelong imprisonment, is theoretically correct, but also misleading.

Different concepts of God and nature

The formulation introduced into the Indian penal code by the British colonists isn't only vague, it also presents a particular problem in an Indian cultural context, since it's imported from a Christian tradition, whereas in India, Hindus, Muslims, Buddhists, Christians and people of other faiths, that have totally different concepts of God and nature, have been live alongside each other for centuries.

"India was always historically liberal when it came to sexual differences," says Shashi Tharoor. Neither mythology nor historic tradition refer to the persecution of sexual nonconformity."

In the Hindu tradition, there are representations of homosexual sex in temples as well as numerous figures who shift gender over time in stories.

The god, Shiva, is often represented as Ardhanarishvara, half man, half woman, and symbolizes both the masculine as well as feminine energy that makes up the universe. Thus, the "third gender" has been revered for a long time and its legal recognition is the result of this worldview.

The colonial legacy

Shashi Tharoor therefore criticizes the Hindu-nationalist, governing party, BJP, for ignoring their own, Hindu tradition. Nevertheless, it isn't on its own. The colonial rule also altered Indians' views of morality. Puritanism can also definitely apply to Indian tradition. And the ca. 20% of religious minorities in the country have their own ideas in turn.

Thus, for a long time, homosexuals have ceded to societal pressure to get married, only to then pursue their sexual interests outside of marriage, unchecked. However, the younger generation especially doesn't want to consider itself satisfied with this status quo.

The conflict in the LBGTI community is therefore not only an expression of societal change in India, it's also the quest to find their own way when it comes to questions of sexual self-determination.

"Public opinion has changed since the 19th century," says Shashi Tharoor. "The time has come for the lawmakers and the courts to acknowledge a pluralistic India.

Author

Britta Petersin is a senior fellow at the Observer Research Foundation (ORF), a think tank in New Delhi. She's been living in South Asia for 13 years. She was previously a correspondent for the Financial Times Deutschland in Afghanistan and India as well as the bureau chief of the Heinrich Böll Stiftung in Pakistan.

Translation: Michael Ladner Copyright: Goethe-Institut / Max Mueller Bhavan New Delhi November 2016

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