The rainbow is out, and rarely has it been brighter.
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A landmark Supreme Court verdict, delivered through four separate but concurring and stirring judgments, has decriminalized homosexuality by scrapping certain portions of Section 377 of the Indian Penal Code (IPC) and also underlined the ‘primary objective’ of the Constitution as one of ‘establishing a dynamic and inclusive society’ that recognizes and grants the rights of all persons who identify themselves as ‘queer’.
The mood among members of the community as well as those who work with them has been euphoric, for it has been the culmination of a long and sustained movement at the grassroots, marked by many ups and downs.
Manohar Elavarthy, founder of Sangama, one of the first Sexual Minorities human rights NGO in the country, voices the sentiments of most associated with the movement in a statement released publicly:
Decriminalising sex between consenting adults heralds a new milestone for personal liberty, equality and principles of social justice. Every human has equal value and criminalising a whole community for their sexual orientation and preference is the worst kind of human rights violation, which we endured for many generations. Criminalising consensual sex between adults is violative of constitutional principles of justice. Today’s historic verdict by the Supreme Court, and the committed activists from among sexual minorities and progressive supporters must be applauded.
Jayna Kothari, co-founder of the Centre for Law and Policy research and one of the leading legal minds who fought the battle against Section 377, says “If one were look at the number of cases filed under section 377, we would find those numbers to be in a few hundreds, probably. It wasn’t so much about being penalised by the law as it was about the threat of this law. The constant fear of prosecution under a law for simply being who you are — you and I will not understand this, what it is like to have our very existence deemed criminal by the Constitution. The verdict is a big victory in that sense.”
But Jayna is quick to step into her lawyer shoes and clarify, “Section 377 has not been scrapped. Portions of the section have been read down by the Supreme Court — for example, decriminalising consensual sexual relations between members of the the same sex or what we know as homosexuality. In so far as that portion of the law is concerned, there are no loopholes which can be used to penalise members of the LGBQT community,” she says.
A tool to fight back
Discriminated against, shamed and even brutally repressed, queer members of society are hanging on to this verdict as a means to finally claim their rights.
Stories of wrongful repression and the implications of having a hostile law are abundant. Vidya from Bengaluru-based All Sorts of Queer remembers a 19-year-old lesbian girl, who was being constantly forced to agree to marriage by her parents and relatives. “She ran away to live with her partner and eventually came to us for help. When she went to file a complaint with the Police Commissioner, she got no help, but instead the police informed and transported her to her parents! We went to counsel the family, but by then, she had got blackmailed into agreeing with her family’s decision,” recalls Vidya. “Now, at least, this judgment will give us some spine and we can expect legal protection, just as straight people do.” She says.
Romal Laisram, Founder of the Queer Arts Movement, says, “All these years, even as I fought for the community’s rights as an activist, I would constantly live in fear that I could be framed with false charges. But now I do not need to fear.”
Anjali Gopalan, Executive Director, Naz Foundation also feels that this may be one of the most crucial differentiators. “The judgement has mentioned that the police will be trained on handling the issue sensitively in every police station. Now, the community can reach out to the police if abused. Earlier this was impossible as they were seen as criminals. Thus this verdict grants them a level of freedom and immunity, which can make a lot of difference to their lives,” she explains.
Beyond gay rights
Lawyer and independent researcher Gowthaman Ranganathan (formerly with the Alternate Law Forum) points out, “The judgment was not given through a technical reading by just merely pronouncing the law as unconstitutional. It was authored with depth and complexity by the Bench. It is difficult to ignore the scale, as it goes beyond the fundamental rights enshrined in the constitution and recognizes the historical wrongs to the community.
The broader import and significance of this verdict – not just from a perspective of sexuality and gender relations, but also of a larger take on constitutional protection to all sections of society – have also been hailed by many.
The Coalition of Sex Workers and Sexual Minorities Rights captures it succinctly through their public statement which says:
While this judgment is a huge leap forward in recognising the rights of gender and sexuality minorities, it comes at a time when other forms of civil liberties and dissent are being cracked down on by the state. And while we celebrate this victory, we must be cognisant of the continuing struggles of Dalits, Adivasis, farmers, students, and other marginalised communities.
Ram, a blogger, who is compiling “coming-out stories” articulates the same even more directly. Apart from underlining what it would do for his immediate community, he says, “The judgement is brilliant, historic and momentous, especially when you consider the kind of government we have now, which is dictating what people should eat, wear and what kind of partner they should select!”
The road ahead
But even as jubilations continue, the LTBTQ+ community and the activists and legal fraternity who have waged a sustained and difficult battle to arrive where they stand today, are all too aware of the realities of the road ahead. Voices of reason and caution are heard from every individual spoken to; questions over how and when the community will truly be a part of mainstream society cannot be missed, even when the celebratory noise is at its loudest.
30-year-old Grace Banu, founder-director of the Trans Rights Now collective, still remembers her adolescence clearly. She felt trapped in a boy’s body, led an isolated life with no friends and suffered every day. “The boys, who got a hint of my sexuality through my behaviour, would peek into the restroom when I went inside. Their curiosity made me even more uncomfortable. I stopped using the loo in school, suffering every day for almost 8 to 9 hours. I remember running back home after school to relieve myself,” says Grace, wondering how long it will take for such realities to change. ““There is no doubt that the judgement has opened up a path. But how many can accept us?” she questions, emphasising the need for creating awareness in every nook and corner of the country.
Dolly Koshy, an IT professional from Bengaluru, is also skeptical about how society would adapt. “General social psychology is one of rejecting anyone who is in a same-sex relationship, because of the innate feeling that it is not natural. I have never had the support system, not even from my family, that would have enabled me to build and sustain a stable and happy relationship with a partner,” says Dolly. “People are no different today because of the Court’s verdict on Section 377, there is still a lot of homophobia. The judgment cannot do much to change that.”
Anjali concurs that social attitude cannot be changed overnight. But she is hopeful, “What we do have now is a strong law protecting all citizens of the country, allowing them to come out in the open. Look at what happened when the Delhi High Court verdict came out in 2009, till the Supreme Court reversed it in 2013. It enabled a large number of people to bravely come out. So, I do believe acceptance will go up. This strong law will help usher in change over a period of time, and push other things in place.”
Mumbai-based filmmaker, photographer and artist Arnab Nandy, whose heartwarming social media post describing his parents’ reaction to the judgement went viral immediately after the verdict, views the current development as a very important step towards a progressive India. But he too is cautious in tone as he says, “There is a lot of stigma attached to homosexuality. Stigma and stereotypes. Society tries to find a wife and husband even in the homosexual couple, which boils down to a basic disrespect for our choices and fuels the concept of heteronormativity. The country still has a long way to go towards real understanding and inclusion of various sexualities.”
Jayna makes another very important point in how the verdict might pan out in the everyday scheme of things. “We need to understand and remember that our rape laws are gender specific; only the rape of a woman can be prosecuted under Section 375. A male rape can be reported and prosecuted only under Section 377 and this has been retained. A common narrative against the transgender community has been that they kidnap young boys and sexually assault them. In 2014, 14 cases were filed (though not under the section 377) in a case in Hassan, mostly against the transgender community, accusing them of kidnap, assault and attempted murder of a young person, who had in fact identified himself as trans and had even submitted an affidavit. This was done by his own family. So it will take time before the implications of this verdict is felt in our society in a big way. But I am happy we have started.”
Many, including Gowthaman Ranganathan, are pinning hopes on the fact that the order has explicitly issued directions for the judgment to be disseminated widely and for sensitization to be ensured in even remote locations, including rural police stations. “We, who have been part of the long legal struggle, hope that this landmark judgment will not remain only in text, but seep into the everyday lives of LGBT people,” he says.
American diversity lawyer Verna Myers’ quote has been repeated often and across contexts. “Diversity is being invited to the party; inclusion is being asked to dance,” she had said. Today in our country, as one speaks to the countless people who have been involved in the fight to ensure rights of people with alternative sexualities, one thing stands out most starkly. While the community is ecstatic over the guarantee of a space of legitimacy in the party, they continue to prepare themselves for the long haul towards the invitation to dance.[With inputs from Laasya Shekhar, Seema Prasad, Manasi Paresh Kumar and Revathi Siva Kumar]