Being an LGBTQ individual living in India is hard. If you are one of them, we feel sorry for you! Not only are you fighting against the bigoted and patriarchal ways of Indian society, but are struggling to speak out loud against the black and white imprint of Section 377 of the Indian Penal Code – an archaic rule made in British-ruled India that still lingers on in the Indian Constitution!
Do not worry, your voices are getting heard. Your tone now resonates deeper and deeper every time! Thanks to the voices of Vikram Seth, Gauri Sawant, Laxmi Narayan Tripathi, Ashok Row Kavi, Onir, Manvendra Singh Gohil, Navtej Singh Johar and other LGBTQ activists, there might come a day when you will no longer have to claim yourself as ‘normal’ as the law will itself do so!
Get yourself ready, the Supreme Court is soon gearing up to review its stance on Section 377.
The meaning of Section 377 and the drama it ensues
- It is a section which criminalizes sexual activities “against the order of nature”, arguably which seems to include homosexual activities (this is where the entire debate hangs in limbo).
- It was decriminalized with respect to sex between consenting adults by the Delhi High Court in July 2009, however, the Supreme Court of India overturned this decision in December 2013 by saying that this matter of amendment or repeal of the law should be left to the Parliament.
- In February 2016, a curative petition hearing for the Naz Foundation and others was held the Supreme Court. The three-member bench headed by the the-then Chief Justice of India T. S. Thakur ruled that all the 8 curative petitions need to be reviewed afresh by another constitutional bench.
- In August 2017, in a landmark ruling, the Supreme Court stated that the Right to Privacy was a fundamental right and stated that, “Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lies at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.”
- The curative petition (challenging Section 377) is still sub-judice and Justice A.P. Shah said that there is ‘there is a strong possibility that the Constitution bench examining the curative petition is bound to go by the Supreme Court judgment’. He further said that there is “very little scope now” for those in support of Section 377.
- However, experts believe that restoration of the 2009 Judgment of the High Court is still possible which can lead to the decriminalization of homosexual sex (again)!
History related to LGBTQ, public opinion, and efforts towards changing LGBTQ perception
- In ancient Hindu and Vedic texts, many saints, demigods, and the Supreme Lord have been shown in manifestations and combinations of sex and gender. Kamasutra talks about feelings for same sexes and in many areas transsexuals are also venerated such as Lord Vishnu in the form of Mohini and Lord Shiva in the form of Ardhanarishwara (half-woman). In older times, homosexuality was never a crime, in fact, it was called Trithiya Prakriti (third kind) since ancient texts do talk about at least 20 types of genders!
- However, in modern times, the unrest against homosexuals and other ‘abnormal’ genders has grown. From mass murders of homosexuals in Syria by the ISIS to our very own country where 2008 Additional Solicitor General PP Malhotra once said that ‘Homosexuality is a social vice and the state has the power to contain it’ and ‘It would lead to a big health hazard and degrade moral values of society’
- The December 2013 judgment of the Supreme Court upholding Section 377 was met with support from many factions, but opposition from others. Baba Ramdev, a yoga guru claimed to know how to cure homosexuality through yoga. The Vishwa Hindu Parishad also voiced the same opinion.
- The Ministry of Home Affairs (MHA) in 2014 stated that nearly 600 people had been arrested under section 377. This was highlighted by the Human Rights Watch which stated that this law harasses and blackmails LGBT people and also hampers the prevention efforts to restrict HIV/AIDS.
- Queer Film Festivals like KASHISH, Bangalore Queer Film Festival, Reel Desires, DIALOGUES, etc. showcase world and Indian queer films for the public to help them understand issues LGBTQ people face.
- NGOs like East-West Center for Counselling, SAATHII, Nirangal, and RIOV help with the counseling of individuals who wish to understand the lives of LGBTQ.
- Bollywood celebs like Onir, Apurva Asrani, Celina Jaitley and Raveena Tandon among others came out in support of amending the Indian Penal Code.
- Many ‘Queer Pride runs’ have been organized in India that took to the streets to celebrate their individuality.
- India’s first Queer Radio channel, ‘Qradio’ was launched in September 2013.The life of an LGBTQ Individual in India
- Most LGBTQ individuals still live a closeted life. They are still struggling to come out and proclaim their sexuality. Many are still under confusion since they know that Indian society is still too rigid to understand what the real issue is due to a colonial-era law staring down at them!
- Most individuals who boldly come out still know that the government could them for their supposed ‘crime’. This is why their voice is either hushed or silenced before it can reach the ears of this country’s judiciary.
- Such individuals are easily intimidated, molested, raped, robbed and looked at with scornful eyes. No wonder that they blame this heteronormative society for bias and keeping them in the shadows since the era of independence! Independence? Nope, they didn’t get their share of that!
- Many are forced into heterosexual marriages. Some even want their partners to talk about their identity in the open!
- Moreover, unlike most foreign countries, our country is still far behind in deciding how many genders there really are for Indians? Social inclusion and fundamental rights go down the drain right here!
What are the Corrective measures that can be taken to make them feel safe?
- The constitution of India still has the power to protect them. It was written with a clear conscience and keeping in mind the diversity of individual irrespective of their religious belief, color, size, shape, sexuality etc. The only issue is how current India perceives it and interprets the fine print.
- The constitution represents each and every citizen of this country and since it is the law of the land, it needs to honor the sentiments of individuals have suffered enough torment over the years.
- Thanks to a more educated and aware generation, this ‘no specific gender’ binary is gaining momentum and all that is left is to slowly wipe out prejudice and feudal mindset that lays excessive emphasis on protecting patriarchy.
We as humans, need to have a collective narrative in order to progress over the boundaries of morality. The constitution and its ethos need to be altered in order to create a socio-cultural mix that does not make someone a victim without a single crime being committed!
Strive to change this regressive and archaic mindset soaked in the era of fatwas, khap panchayats and honor killings towards a more progressive and accepting society.
More power to you! The rainbow ﬂag was made for a purpose! Wave it with pride!