With the changes to Section 377 of the Indian Constitution last week, we asked some of our Ambassadors there to explain the news and what this means to the LGBTQA+ community in their country.
INDIA MAY HAVE MANY PROBLEMS, 377 AIN’T ONE ANYMORE!
“I am what I am. So take me as I am,” said the Chief Justice of India, Dipak Misra, while pronouncing the historic judgment on the infamous Section 377 of the Indian Penal Code, 1861. The Supreme Court of India has declared the provision of gay sex in India as legal. This momentous move by the apex court has legalized a whole lot of Indians, who were unable to open up to the society about their sexual orientation due to the fear of not only ostracization but also a conviction until this day.
Most jurists agree that law is never static and it must change with the change in societal mindset. The controversial provision had its origins in the Victorian England’s view of morals and values. A law enacted to curb sodomy was being used to convict adult individuals for their choice of partner. Such a law in the 21st century only seemed outrageous.
While the 6th of September 2018 would remain a landmark day in the history of judicial pronouncements, the struggle for equality of the LGBTQIA+ community is one of 17 years. The Naz Foundation, a prominent organization for the rights of LGBTQIA+, first filed a petition asking for striking down the outdated law of Section 377. A law that differentiates between people on the basis of their sexual orientation and what they do in their bedrooms is immoral and a severe breach of their right to privacy.
Below are some of the notable highlights of the judgment, as pronounced by a five- Judges Bench of the Supreme Court of India:
- Most criminal law judgments are progressive in nature, i.e., they apply on the future cases only. However, the court has specifically announced that this judgment shall have impact on the ongoing prosecutions too.
- The apex court also directed the Government of India to take all efforts to publicize the judgment and its effects to the society at large and all efforts must be taken to sensitize the government officials. This is a very important as it is essential to understand that while the court may make a law valid or invalid, the society must also be made conducive for the justice to prevail.
- The court stating that the majoritarian view does not dictate the Constitution reiterates that the Constitution of India is the supreme law and its ethos must prevail in all matters.
- It has been noted by the Court that gay sex is neither a mental disorder nor ‘against the order of nature’. The law has, for decades, been used as a weapon to restrict the freedom of expression by way of this law.
- “History owes an apology to the members of the LGBT community and their families for the delay in providing redressal for the ‘ignominy’ and ‘ostracism’ they have faced through the centuries,” said Justice Indu Malhotra in her concurring judgment, thereby noting that the provision has been wrongfully applied and has resulted in denial of the right to equality for a long time.
There is no doubt that this judgment is a massive win for the LGBTQIA+ community and the idea of democracy in India, what lies ahead is a larger battle. While it is now legally clear that love is equal and the government has no business in the personal space of two consenting adults, there is still need for certain important steps to ensure that no form of injustice or discrimination is faced by the ‘newly legal’ citizens of India.
Though Article 14 of the Constitution of India provided a fundamental right of equality to all persons within the territory of India, there is need for a law protecting the LGBTQIA+ community from any kind of harassment at workplace. It will not only assist but also sensitize the society towards non-discrimination.
Further, while gay sex is legal, gay marriages are still to be legalised. The law must be modified to include the union of non-heterosexual couples. Similarly, the law on property rights, inheritance rights and even the right to divorce must be amended to give a wholesome effect to the spirit of this landmark judgment.
For now, we must all celebrate the victory of love, the rainbows in the clouds and the hope of an equal and tolerant society.
PRIDE, NOT PREJUDICE
In a historic victory for gay rights, the Indian Supreme court unanimously struck down one of the most regressive colonial era ban on consensual gay sex, putting to rest a legal battle that has stretched for years, while burying one of the most glaring vestiges of India’s colonial past.
Chief Justice Dipak Misra termed the colonial era law known as Section 377 of the Indian Penal Code as “irrational, indefensible and manifestly arbitrary”, while emphasizing a need to bid adieu to prejudices and empower all citizens. The justices said that homosexuality was natural, and that the Indian constitution was not a “collection of mere dead letters” and should evolve with time. Section 377 would not apply to consensual same-sex acts between homosexuals, but would apply to bestiality and sexual acts without consent by one of them.
Justice Chandrachud in his verdict stated that “Tragedy and anguish inflicted by Section 377 should be remedied. Human instinct to love has been constrained. Sexual orientation has become a blackmail on the internet. State cannot decide the boundaries between what is permissible or not. Section 377 is a majoritarian impulse to subjugate a sexual minority to live in silence.”
Since innumerable years LGBTQ rights activists have been tirelessly fighting for this day. Section 377 has been in the cross hairs for several years now, with the courts going back and forth on it. This issue involved much more that decriminalizing homosexuality. It is about the right of equality of all citizens, which is guaranteed as a fundamental right in our constitution. It is about people wanting to live with dignity.
We Indians are incredibly privileged to have witnessed this historic day that has acknowledged the right to love and love with pride. India among its many flaws is on the path to ingrain the basic rubrics of humanity that we lost along the way. Though in recent years more and more homosexuals have come out, and acceptance of gay, lesbian and transgender people has grown to some extent, the fact that intimate behavior was still criminalized created much shame and discouraged countless homosexuals from coming out.
Now that the LGBTQ community has attained legal acceptance, the next hurdle remains social acceptance. Certain religious and political outfits have publicly condemned this landmark judgment, terming homosexuality a “mental disorder”, and that the same would lead to transmission of HIV. In a country where we have certain political leaders of such regressive mentality, it is a given that there are blind followers as well. On this note, the Indian Supreme court emphasized that the Centre should take campaign to reduce stigma surrounding sexual minorities, such as the recent Mental Healthcare Act, which recognizes that homosexuality is not a mental disorder.
This day is just the beginning, so let us not taint this with criticism and complacence. The fight continues, but first let us celebrate all that we did manage to win, by belonging to something larger than just us. This is only our first rainbow flag of victory, on the way to more.
A MILESTONE DECISION
By Diya Chordia
On September 6, 2018, the Indian Supreme court took one of the milestone decision in all the rulings of Indian history. It scraped off the part of section 377 that criminalised consensual sex between same sex couples and gave a criminal status to people from the LGBTQA+ community. After the supreme court ruling, which stated that all citizens are born equal and must be given equal rights, the LGBTQA+ community can no longer be termed as criminal or punished for their identities. They need to be treated as equal citizens. As per the supreme court, any discrimination on the basis of sexual preferences or orientation will be a crime. This step will help largely in promoting the rights of the LGBTQA+ community through a legal framework.
Although the ruling made many people including students, activists etc extremely delighted, there was still a lot of opposition to it. Many television personalities, celebrities and politicians didn’t try to conceal their obvious homophobia for the event.
Famous TV personalities, like Baba Ramdev openly condemned this decision over television channels. He went as far as to say that being LGBTQA+ is a mental disorder, unnatural, and brought to the country by westerners. He took several digs on the community, and kept bringing religion into the debate.
The criticism was expected. In a country where religious extremism has become a huge reality, and societal guidelines dictate legal rights to a huge extent, it was expected that homophobic comments would flow in from all sectors.
But there are two things wrong with this whole incident of criticising the verdict. First of all, people like Baba Ramdev have a huge audience. They have devoted deities for them, that will always mold their mindset as per his words. When someone with a position so high uses their platform to spread hate speech, or I’d say, wrong information, it is definite that people will be affected by it.
Those already cynical about the decision, will now have their idol openly hating the whole community. This will not be stopping the stereotypes and stigmas that are associated with the LGBTQA+ community anytime soon. Apart from that, die hard devotees and extremely religious citizens will harbour this hate and there’s no doubt that it might turn into hate crimes and violences.
Everybody knows the power of words and speech. It can make or break someone. Even though people like Baba Ramdev, have complete right to express their opinions, and freedom of speech, they must not turn it into hate speech.
Which brings us to the second point. The Indian LGBTQA+ community has had to face some of the worst cases of inequality, and sometimes violences. People have been harassed, injured or even killed, and rarely have the police cases been registered.
A look at the brief history of the attempts made by the Lok Sabha to scrape off Section 377 clearly show the bigoted nature of politicians, and moreover, how they are willing to not pass bills that oppose the beliefs of the people who generally vote for them.
When some few year ago, hon’bl Parliamentary minister, Mr. Shashi Tharoor had tried to introduce the bill to edit Section 377 and to hold a debate on LGBTQA+ rights, ministers laughed at his face. Some went as far as to say that he is just ‘trying to get some’, and the bill never even passed.
What this shows us is that the community has been oppressed for many years since the Independence. They haven’t had equal rights as per the heterosexual population. So when people talk about how one of the most oppressed groups in India must not get basic equal rights, just because it does not allign with their religion, it is called hate speech. There is a huge difference between stating your opinion, and downright demeaning someone. And it seems like many don’t know the difference.
When people claim that this is a western concept, they show their lack of knowledge on these topics. As per many academics, India was an extremely gender fluid nation before colonisation. It taught the world about sex, through the book ‘Kama Sutra’, by Vatsyayana. The concept of sex, and its various characteristics were discussed for the first time in this book. It was only after the British came that prejudices started appearing.
As conscious and active citizens, it is our duty to spread knowledge about this hate and stereotyping. To maintain the peace and harmony between people with different beliefs, we need to initiate conversations that clear out bigoted beliefs. It is possible, by our added efforts, to break this hetero-normative society, and create a more accepting country for all the citizens.
Main photo credit: reddees / Shutterstock.com