The hearings ended in March 2012. I had expected a prompt ruling, but none came. Months passed, and then a year. Inexplicably, there was still no indication from the Supreme Court about a date for the decision.
Eventually, it became clear that the ruling would have to be issued by the end of 2013 because Justice Ganpat Singh Singhvi—the senior member of the two-judge bench—would be retiring then. Justice Singhvi seemed to be delaying the judgment for his last day in court to forestall any controversy.
Though I paid close attention to the proceedings, reading the detailed daily reports from the courts as well as the legal briefs (all efficiently shared on an LGBT email list), I was not worried about the outcome. As long as the ruling was announced by summer 2014—when the forthcoming national elections threatened to bring back the bigoted BJP in an anti-Congress wave—there was no reason for worry, we observers told ourselves.
The judgment was finally listed for the morning of December 11, 2013, Justice Singhvi’s very last day in court. The courtroom was packed to capacity by the time Justices Singhvi and S. J. Mukhopadhya arrived at 10:30 a.m. Outside, hundreds of supporters of same-sex rights had gathered. At home in Pana Para, I sat glued to my computer to check emails and online news briefs and kept the TV news on loud.
At 11:00 a.m., two terse emails from gay activists present in court appeared in my inbox:
“They have overthrown the High Court judgment.”
“It seems they said Section 377 stands constitutionally. They have said Parliament must decide.”
I read those emails again and again in disbelief.
I turned quickly to the TV news. There, a few minutes later, headlines confirmed that the Supreme Court had overruled the Delhi court’s decision, with the judges saying “We hold that Section 377 does not suffer from . . . unconstitutionality and the declaration made by the Division Bench of the High Court is legally unsustainable.”
Once again I was a presumptive criminal in my own country.
India had progressed so much that criticism of the judgment far outweighed the few reactionary voices that welcomed it. In editorials, newspaper after newspaper called the judgment “disgraceful,” “retrograde,” and a “body blow to liberal values and human rights.” India’s attorney general, Goolam Vahanvati, published a critical op-ed in the Times of India, saying that he had decided to break with precedent to write publicly because of “the importance of the matter” and then going on to call the court’s ruling a “tragedy.” Sonia Gandhi, the president of the ruling Congress Party, condemned Section 377 as “an archaic, repressive and unjust law.”
The most moving criticism came from Leila Seth, my friend Vikram Seth’s mother and a distinguished jurist, who had retired recently after serving as the first woman to be the chief justice of a state high court. Through all the efforts Vikram and I had put in in the past, she had—as a matter of principle—refused to influence her colleagues in the judiciary in even the slightest manner possible. But now she wrote in the Times of India: “The judgment claimed that the fact that a minuscule fraction of the country’s population was gay or transgender could not be considered a sound basis for reading down Section 377. In fact, the numbers are not small, but even if only very few people were in fact at threat, the Supreme Court could not abdicate its responsibilities to protect their fundamental rights, or shuffle them off to Parliament . . . The reasoning in the judgment that justice based on fundamental rights can only be granted if a large number of people are affected is constitutionally immoral and inhumane.”
It was gratifying to see the Congress-led government’s commitment to the matter. Within ten days of the judgment, the government had pressed for a review before a full bench, per Supreme Court procedure. In visibly critical language, it detailed seventy-six grounds to underscore that the judgment authored by Justices Singhvi and Mukhopadhya had not fulfilled the apex court’s responsibility for judging the constitutional validity of laws, “especially a pre-Constitutional law,” and was “contrary to well-established principles of law laid down by this court enunciating the width and ambit of fundamental rights.” The government’s plea was joined by the Naz Foundation, Voices Against 377, and several other groups, each of them stressing that a larger bench should review the case.
However, on January 28, 2014, a Supreme Court bench rejected those petitions and decided that there was no reason to reexamine the original judgment. There was little hope that the decision would be reversed anytime soon. It would remain indefinitely, perhaps for my lifetime.
It was in those years that I realized that independent India’s particular national tragedy was that its governance perpetually betrayed the stunning opportunities for emancipation and progress thrown up by the democratic churning at the grassroots.
For sex workers, as for gay men, there was to be no justice. All the vast promise of change I had seen in India since the mid-1990s until the Bush assault began had not been translated into lasting gains. The extraordinary sex-worker groups that dotted the country continued to make a huge difference to the safety and well-being of those in the areas they worked in. But they were relatively few in number, and the vast majority of sex workers did not have sustained help of any kind, especially because the hundreds of millions in international funding for India’s AIDS efforts had evaporated now that the epidemic was not escalating as long feared.
And though the sex-worker collectives and supportive human rights groups continued valiantly to turn to the courts and sympathetic politicians to challenge the laws criminalizing sex work, there was no sign of a breakthrough. Instead, with the laws never having been changed, the old abuses of the past—the raids on brothels and homes, the arrests and imprisonment of dozens of women at a time—recurred with depressing everyday regularity, reported in newspapers across the country. The new vocabulary of “antitrafficking” provided fresh cover for the old abuses, with the police now insisting they were breaking up traffickers’ rings and rescuing “victimized” women; but, as in the past, the women were arrested, cursorily tried, imprisoned in reformatories, and all the while subjected to every kind of exploitation and abuse, making a mockery of the police and antitraffickers’ claims of helping them. I often could not bear to read those newspaper reports, those constant reminders that sex workers remained as abused and wronged as decades earlier.
I saw that heartbreakingly everywhere I traveled in those years. In a remote rural area of Tamil Nadu, I was told by the district’s chief of police, a thoughtful, competent official, that his juniors had reported to him that there were two brothel keepers in his area, reputedly also involved in trafficking of women, and that he was cracking down only on them but not on sex workers. With some trepidation, expecting two fearsome criminals, I went off to find them. But the truth was as far removed from what his zealous juniors had told him as could be imagined.
One was a middle-aged sex worker herself, Jayamala, a visibly exhausted woman, living in a ramshackle hut in the poorest part of the village. From a backward caste and widowed early, she had educated and raised her daughter by selling sex as well as working as a laborer; her daughter was now married and well settled in neighboring Kerala. Alone once again, she was desperately struggling to survive by selling sex herself as well as simply charging other women a small fee to use her hut to service their clients—but for that she had been accused by the local policewoman of being a pimp and a trafficker. Jayamala said angrily, “This policewoman is a terror. She wants to blame us sex workers for everything! She has even tried to implicate us in some random man’s murder!” The other alleged pimp/traffickers proved to be an elderly couple whose only adult son had died in a mishap, and to survive they looked the other way when sex workers paid them to use the spare bedroom in their modest home.
My despair reached its nadir when I met Kamala in the summer of 2013. She had agreed, though reluctantly, to meet me outside the women’s reformatory in Chennai’s Mylapore area. That was where, in a sense, it had all begun nearly
thirty years before—in 1986—when Selvi and the five other HIV-positive sex workers had been imprisoned there. It was also where Kamala had been imprisoned until recently, in a depressing parallel to Selvi’s fate all those decades ago.
Kamala was waiting for me on the far side of the road from the reformatory’s gates, the unbroken traffic clearly providing her with a reassuring sense of distance from the reformatory. She was thin, dark, middle-aged, dressed in a green-and-black sari of some shiny synthetic material, her hair braided neatly. There was a telltale strain of constant worry in Kamala’s voice. “My years in the remand home were the worst of my life,” she told me. “It was a prison. From the time I was arrested by the police in 2010, I kept saying to them that I was not a victim of trafficking or pimping, that I wanted to be free, that there was no reason to hold me. But no one listened. And they held me there for more than two years, till 2012.”
She went on, “Perhaps I would have been released earlier, but when I was arrested, my husband was arrested, too—booked as a pimp. He is not a pimp! He works as a guard. All he did was come to the police station on hearing that I had been arrested. Of course he knows about my work, but he never pimped me. He was sent to Puzhal prison for a month.
“My boys were suddenly on the streets, because, hearing of our situation, our landlady had thrown them out. They slept on the pavement at [the] Broadway bus stand before a neighbor found them and took them into her house, even though she is as poor as us. She fed them every day. I will never be able to repay my debt to her. My boys had to leave school and start working at a mechanic’s shop, even though they are so little.
“When I was freed, my husband said to me, ‘We will manage with what we have. You must not do this work anymore.’ But he now has to work both day and night shifts as a watchman. He is very tired. And the boys’ education has come to an end. They are both working and bringing in a little money every week. I want to help. But I don’t know how. All I can do is manage the household expenses as best I can.”
I didn’t tell Kamala about the emotions coursing through me as I heard her out.
I felt boiling anger that such disastrous harm was being done to impoverished, defenseless people because of the cynical misrepresentation by prohibitionists—Bush, his evangelical zealots, and misguided do-gooders such as Nick Kristof and Gloria Steinem—that all those involved in sex work were madams, pimps, and traffickers preying on victimized women and children.
And I felt despair. In the second decade of the twenty-first century, Kamala had suffered precisely what Selvi had suffered nearly three decades earlier—years of imprisonment and abuse because of the bad old laws that left sex workers at the mercy of bigoted policemen and judges.
That was the most damning proof of India’s failure to provide justice to those sinned-against, outlawed women.
EPILOGUE
In June 2014, I left Pana Para to move back to New York City. I had lived in India for seven years, my longest stretch in my home country as an adult—and the first in which I had felt at ease living there.
Yet there were compelling reasons for me to leave. India was heading into a dark era, potentially more dangerous to the country’s prospects than even the years in the mid-1970s when Indira Gandhi had ruled as dictator. The Hindu-supremacist BJP had come to power in national elections in May 2014. The party had won just 30 percent of the vote, but longstanding flaws in the electoral system meant that it controlled three-fourths of the parliamentary seats, a situation it was certain to exploit. The US, with Obama leading it, seemed in a halcyon era, and I ached to share in it.
The joy of being once again with my beloved friends and renewing my carefree life eased the pain of leaving my home in Pana Para. I knew also that I would eventually return there—I had come to love my solitude on this enchanted mountainside too deeply to be able to live anywhere else for long.
My move back to the United States was made unforgettable a year later, on June 26, 2015.
I got to celebrate firsthand the US Supreme Court decision upholding marriage equality. It was as exhilarating a day as the one exactly twelve years earlier on which that court had struck down America’s sodomy laws, and the day in July 2009 when the Delhi High Court had struck down India’s IPC Section 377. For the first time in my life, just months short of my fifty-fourth birthday, I would be living in a society where gay men and women were legally assured an equal right to romantic love and to families of their own, even if equal protection and true justice remained very distant.
Though I exulted in seeing this progress, I found that my own longings for a relationship or even for sex were no longer as pressing as in the past. I went out on a few dates—with an old flame, with pleasant men I was set up with by friends, and another handful I met through dating sites—but in time these petered out. The recent years of loss and grief and solitude at Pana Para had fundamentally changed my expectations from life.
I savored the joys that I had—Lorca (now nearing sixteen and painfully frail, as dear to me as if he had been my child, whose passing I dreaded), my beloved friends and siblings, my work passions, and my peaceful existence. It was very different from my forties, where I had battled the dissatisfaction I had felt about the things missing in my life, romantic love most of all. I felt blessed to have lived long enough to make sense of my life, to be at peace with both the blows and the joys I had been given and what I had made of them.
The beginnings of true gay liberation had been won with certainty, in the span of my life, in the US and in dozens of other countries worldwide. Yet in India things seemed hopeless, between the Supreme Court ruling in December 2013 upholding IPC Section 377 and the obscurantist BJP in power, who, by this time, had shown that the killing of Muslims, terrorizing of Dalits and adivasis, and the suppressing and murdering of dissenters was integral to their assault on India’s secular fabric. It was India’s shame that it was the only major democracy of the seventy-plus countries that continued to criminalize same-sex relations.
Year after year, efforts to get the court to reconsider its 2013 ruling made no headway. The court’s intransigence seemed all the more inexplicable after another set of Supreme Court judges made a pathbreaking ruling on transgender rights in April 2014—recognizing a “third gender” and ordering the government to provide them with affirmative action benefits in education and jobs.
Eventually, in February 2016, the court agreed to refer the judgment to a full bench of five justices. This was a breakthrough but still did not mean a favorable ruling was likely. And with this being the last stage of judicial appeals, the stakes were climactic.
Then, in August 2017, things turned around unexpectedly—and to such an astonishing degree as to instantly fill me with optimism that the indefinite sentence I had endured all my life would soon be lifted.
In a landmark 547-page ruling in an unrelated case that affirmed that each of India’s billion-plus citizens have a “guaranteed fundamental right” to “individual privacy” as an indivisible part of the rights to life and personal liberty, the Supreme Court commented: “Equality demands that the sexual orientation of each individual in society must be protected on an even platform.”
The justices stopped short of overturning the court’s 2013 judgment—noting that another of the court’s benches was already hearing the challenge to this matter, with final hearings scheduled for the summer of 2018. But they left no doubt of the direction in which India had to move, describing the court’s 2013 judgment in Koushal v. Naz Foundation as “flawed” and “misplaced,” and concluding that they “disagree with the manner in which Koushal has dealt with the privacy-dignity–based claims of LGBT persons.”
And so, in the near future or perhaps even by the time this book is read, it is almost a certainty that my country, too, will overturn this historic injustice. On that day, for the first time in modern history, an overwhelming majority of the world’s people will be living in societies where same-sex love is not criminalized.
&nb
sp; In the US and elsewhere in the Western world, in sharp contrast to the gay liberation that was being realized, there had been no parallel liberation for sex workers.
The US government’s antiprostitution gag rule and unilateral antitrafficking crusade remained in place, testifying to the depressing fact that the most irrational, egregious policies are precisely the ones most difficult to end. When President Obama moved to weaken the gag rule, Congressman Chris Smith, the right-wing Republican who had authored that clause, accused him of “enabling sex trafficking and prostitution all over the world.”
Within the US, the persecution of sex workers continued unabated—as did the hype about sex trafficking. Year after year, tens of thousands of women, trans women, and men were arrested on prostitution charges. A government crackdown on online adult services and sex workers’ ads—such as those advertised on Craigslist and Backpage—was couched as a move to combat the sex trafficking of minors, but more often than not it proved to be an attack on sex workers themselves, making it harder for them to find clients and worsening their risks of violence and exploitation.
Beggaring belief, in August 2016, federal agents from the Department of Homeland Security arrested the CEO and employees of Rentboy.com in Manhattan, a website that had openly served countless male sex workers and their male clients for two decades, on the grounds that “this Internet brothel made millions of dollars from the promotion of illegal prostitution”—even though the service had made life safer for sex workers and there was no evidence of exploitation or other crimes.
The irrationality of American thinking on sex work came under the spotlight when Amnesty International announced that it was considering a global policy to urge governments to fully decriminalize sex work as a crucial step toward “the highest possible protection of the human rights of sex workers.” Amnesty based its recommendation on years of research in diverse countries. The final say lay with Amnesty’s eighty national chapters, five hundred delegates from which were to vote on the draft policy in August 2015.
An Indefinite Sentence Page 37
