INTRODUCTION
As with all communities that are oppressed in society, it is not only the law that contributes to their unprivileged status in society. There are a number of other factors such as social taboo, notions of tradition, culture and so on. Law is one part of this conglomeration of tools that are used to oppress a range of different people. No oppressed community in the history of humankind has been an exception to this rule. Laws either give more power to some over others or explicitly deny rights to certain persons/communities. Either way, the cumulative effect remains the same. Many a times, laws, that are set up supposedly to maintain equality between all creatures, human and otherwise, do quite the opposite. It will not be an over statement to say that the law is often a tool in the hands of those with power. Law is a tool which can be used not just to garner more power in terms of social status or wealth, but also to maintain existing structures that might be oppressive.
Section 377, an archaic “colonial ghost”, had been in place for 158 years. It criminalises “carnal intercourse against the order of nature”. Broadly drafted, the law codifies Victorian morality to criminalise a range of consensual and non-consensual (“unnatural”) sexual behaviours, including homosexuality, bestiality, paedophilia, and rape. While very few people were prosecuted for same-sex sexual activity under the criminal law, it left sexual minorities vulnerable to extortion, harassment, and abuse. The Supreme Court’s decision on Section 377 means that gay sex is now excluded from its reach. It is important to remember that Section 377 meant different things to different groups of queer people. While for some it was the symbolic harm of their desire being designated as “unnatural,” for others it had a material significance in their everyday negotiations with harassment and violence in public spaces.
SECTION 377 & ITS EVOLVEMENT
Section 377 is part of the three laws that relate to sexual offences, namely Section 375 and Section 376 (rape). The most common use of this law has been in cases of child sexual abuse. Studies have shown that in the total of 46 cases booked under Section 377, 60% have been of men sexually abusing children, 20 cases have involved male children, and 10 female. This is primarily because there is no other law within our statute books to address the issue of child sexual abuse. This exposes a huge gap in our legal system as Section 377 is not by any means adequate to address an issue as significant and complex as child sexual abuse. Apart from this, this law has been used to mete out violence to same sex desiring people in the form of harassment, blackmail and sometimes physical violence. While there have been only six reported cases of consensual same sex acts, the fact is that even though cases may not be booked on these people, Section 377 is the weapon that the police and goons alike possess to harass individuals on the basis of their sexuality or gender transgression.
In 2001, the Naz Foundation, an organisation working to end HIV/AIDS, petitioned the courts to “read down” the law to exclude consensual sexual activity between adults. The Delhi High Court agreed and held that criminalising gay sex violated rights to equality (Article 14) and privacy/liberty (Article 21) guaranteed by the Indian Constitution. However, the Supreme Court overruled this decision in 2013, holding that only parliament could change the law.
The SC judgement on Section 377 ties constitutional values with emotion. Supreme Court’s decision to decriminalise homosexuality is incredibly heartfelt and vindicates the dignity of LGBT people. On September 6, 2018, India finally struck down the British era law that criminalised consensual gay sex. There was a collective sigh of relief as the court lifted the weight of criminality from those who lived in the shadow of India’s law criminalising homosexuality, specifically section 377 of the Indian Penal Code 1860 – a vestige of British
colonialism.
Chief Justice Dipak Misra observed that punitive laws eroded the “right to choose without fear” a partner and realise “a basic right to companionship”. Citing one of the court’s prior decisions about privacy, he noted: “The rights of the LGBT community inhere in the right to life, dwell in privacy and dignity and they constitute the essence of liberty and freedom.” In his view, the constitution is a way to nourish individuals – “the painting of humanity” – a document that could not only protect their affective and intimate capacities but actually help cultivate them.
Justice Rohinton Fali Nariman, meanwhile, explored the transnational/colonial legal histories relating to the criminalisation of homosexuality and concluded the law was “capricious and irrational”. For him, decriminalising gay sex should be part of a broader public awareness campaign to “eliminate stigma” against LGBT people. In a concurring opinion, Justice Dhananjaya Yeshwant Chandrachud combined critical theory with legal analysis to hold that the Indian Constitution obliged the court to end the “anguish of closeted identities”. Justice Indu Malhotra added that LGBT people deserved an apology for the delay in redressing their suffering.
The justices’ poetic flourishes clear the path for future courts to recognise LGBT (and possibly intersex) rights in areas like employment, education, and family. Justice Misra held that sexual minorities should live without fear or shame when expressing their intimacies in public.
Justice Chandrachund cited queer scholars such as Ruth Vanita and Eve Sedgwick to deconstruct how social norms make heterosexuality and binary gender appear natural while making sexual and gender non-conformity “unnatural”.
Together, these judgments go further than comparable jurisprudence in the US and UK, which confine same-sex intimacy to the bedroom. As Justice Chandrachund made abundantly clear, the Indian Constitution “protects the fluidities of sexual experience” and sexual minorities must be able to “navigate public places on their own terms”.
To be sure, the court’s exhortations of love are not without their problems. Justice Misra qualified that public expressions of homosexuality should not be “indecent” or “disturbing” to public order. But at what point does an expression of intimacy (such as two women kissing in public) cross the line between acceptable and offensive? Justice Malhotra also held that the ruling would not be retrospective, so people unjustly convicted under Section 377 were left without an effective remedy.
Despite being some of the sharpest minds in the country and having the best educational qualifications, members of the LGBT community are deprived of the rights and freedoms guaranteed by the Constitution. Following this judgment, there are many other rights that must be adjudicated upon.
First are the civil rights that have been guaranteed to millions of Indians under Article 21 of the Constitution, but have been denied to members of the LGBT community. Article 21 protects the right to life and personal liberty and has a wide ambit, including the right to privacy, dignity and autonomy. The judiciary must protect homosexual people’s right to get married, to adopt children and to have a family. In addition to this, they must have a right to get divorced, to inheritance, to be maintained, etc. Domestic violence i.e. abuse in a domestic setting must also be penalised in same-sex relationships under the Protection of Women Against Domestic Violence Act (PWDVA).
Secondly, sexual violence affects all demographics including the LGBTQIA+ community. The legislature and the courts must take steps to construct an inclusive definition of offences such as rape (Section 375 and 376 of the Indian Penal Code), sexual harassment (Section 354A of the Indian Penal Code), stalking (Section 354D of the Indian Penal Code) and word, gesture or act intended to insult the modesty of a woman (Section 509) among others.
Thirdly, hate speech, if unpunished can go a long way in promoting “disharmony or feelings of enmity, hatred or ill-will” and can be “prejudicial to the maintenance of harmony” and “disturb the public tranquillity” of the LGBTQIA+ community. Section 153(A) of the Indian Penal Code should be amended to protect the sexual orientation and beliefs of the homosexual.
Fourthly, the apex court said that the discrimination on the basis of sexual orientation is “deeply offensive to the dignity and self-worth of an individual” and is prohibited under Article 15 of the Constitution. From this, we must realise the need to protect the homosexual community from discrimination at the workplace and at educational institutions. It violates the right to equal opportunity given under Article 14 of the Constitution. Due to the stigma attached to homosexuality, members of the LGBT community don’t get appointed and promoted at their workplaces.
Subramaniam Swamy recently said, “Legitimising homosexuality leads to commercial profit, since gay bars will be opened in all cities on foreign direct investment. It is a genetic flaw celebrated”. The legislature and judiciary can only do so much to change this orthodox mentality of Indian citizens. Homosexuality is not a disease that is meant to be cured, and it is high time that the people of India should accept the presence of the big rainbow-coloured elephant in the room.
GENDERED VIOLENCE & THE LGBTQ COMMUNITY
“Stigmatising homosexuals and transgenders is so common in Tripura that no LGBTQ community/collective has ever had the chance to grow in the state. I recall the abuses, body shaming, slander and insults when I grew up. The Supreme Court verdict is a reply to all of them,” says Shivani Acharjee, a transwoman from the state.
“We are very happy that the mindset will finally change. But this is just the first stage of our victory. We also have to see how the government will treat the community after this. For example, Assam still has no Transgender Policy despite the Supreme Court ruling. As a result, most of the transgenders in Assam have been left out of the NRC. Our fight will continue.,” says Swati Bidhan Baruah, 27, well-known transgender activist and Conciliator in Lok Adalat, Assam.
Ideologies of masculinity contribute to the motivation of heinous crimes such as homophobic gay bashing murders. During the Gulf War, Saddam Hussein was constantly sexualised on bumper stickers that read, “Saddam, Bend Over” and “USA-Up Saddam’s Ass”, insults that equated military conflict with homosexual rape.
One of the most significant “causes” of male violence, is gender violence. And the victims of this are not only women, but also men. First, it seems clear that the less gender differentiation between men & women, the less likely will be gendered violence. This means the more “like women” men can be seen-nurturing, caring, frightened- and the more “like men” women can be seen-capable, rational, competent in the public sphere- the more likely that aggression will take other routes besides gendered violence.
What is clear however, is that there have been repeated instances when Section 377 has been used directly or indirectly to harass and threaten same sex loving and gender transgressive persons. In 2006, four men are conned in a planned manner by the police to come to a park after which they were arrested and charged under Section 377. Sangama, an organisation that works for the rights of gender transgressive and same sex desiring people, has noted a number of instances of individual and group harassment of the communities they work with. There has been repeated violence inflicted on many persons in public as well as within police custody. This has involved mental, emotional and physical violence, including rape. Many such cases have even led to the death of persons involved. In 2008, activists and community members who work with Sangama were arrested, confined and beaten up for hours in a police station in Bangalore. Apart from this, there is regular violence meted out to same sex desiring and gender transgressive people by others such as local hooligans. These cases are also often serious and sometimes life threatening. In such cases, these persons are not able to access the assistance of the police due to a law such as Section 377. The hooligans, knowing full well that these communities do not have any legal rights, take full advantage of the same.
This often takes the form of anything from blackmail and harassment to physical violence.
As we know, a change in one law does not always change a well-ingrained social mindset. Real and significant changes which lead to the improvement of the quality of life of all individuals in a society take far longer than the duration of any one legal battle. Further, using any law as the centre of a struggle for rights may bring about contradictory results. With regards to Section 377, the history of the law is such that its public perception brings to our imagination, primarily male persons. Efforts in the movement have been to made this struggle as inclusive as possible. But as with all social movements, different groups have different concerns even within the law.
Queer women, for example, face much of their harassment within the domestic sphere especially if they are from economically underprivileged backgrounds. This is further complicated by their possible oppressed caste and regional identities. In terms of the law, they are harassed on the basis of laws relating to kidnapping, robbery and sometimes even murder. These are concerns that are not necessarily addressed by the struggle against 377.
Similarly, discussions about gender transgressive persons has been minimal if not absent.
The hijra community with its unique history has lobbied for rights and recognition in some parts of the country and has made some forays, such as the inclusion of ‘other’ in the passport forms. The provision of voters’ IDs in Tamil Nadu, or the Aravani (Hijra) Welfare Board, also in Tamil Nadu, are examples. Even in this context, we still have a long way to go. The concerns of female-to-male transgender persons, of male-to-female transgender persons who do not identify as hijras, intersex persons, or the myriad other forms of gender transgression, are not addressed by the law or in most instances by social movements against the law. These concerns involve basic civil rights such as acquiring an identification document, the right to safe and affordable sex reassignment surgery, access to non- discriminatory mental health facilities and so on.
Further, the persons who are to be represented in this struggle against Section 377 are not just transgressive in terms of gender and sexuality. Their situations and stories cut across the realities of caste, class, region, religion etc. All of these realities and the myriad ways in which they create a nexus of oppression for certain groups, while privileging others, are not always reflected in the legal battle.
Having said all this, it is important to remember that the struggle against Section 377 has become symbolic of an inevitable course of events, and has provided momentum and visibility to the need for bringing about far-reaching changes across society. The overall struggle need not be, and has never been, just about the law.
The SC has said that the law was based on gender stereotypes that reinforce sexism and hence the effort to end discrimination against homosexuals should be seen as a part of the effort to end inequality of the sexes.
Sanctioning of discrimination based on sexual orientation perpetuates the subordination not only of lesbians and gays but also of women.
“Hetero-sexism, then, in its reliance on a bipolar system of sex and gender, reinforces sexism in two ways. First, by penalising persons who do not conform to a bipolar gender system and rewarding men and women who do, the heterosexist hegemony perpetuates a schema that valorises passive, dependent women, thus contributing to sexism.
“Second, hetero-sexism reinforces sexism because it subordinates the female sex through its hierarchical polarity. Because hetero-sexism perpetuates sexism, the extension of substantial rights to lesbians and gays, who by definition challenge heterosexism and the concept of a binary gender system, would result in a challenge to sexism and to male power.”
Statutes like Section 377 give people ammunition to say “this is what a man is” by giving them a law which says “this is what a man is not.” LGBT individuals as well as those who do not conform to societal expectations of sexual behaviour defy gender stereotypes, the judgement said.
In a patriarchal context, some of the serious transgressors are women who reject men as a sexual partner and hence reject the patriarchal system and all other forms of male supervision and control, he said, quoting another academic.
The case for gay rights undoubtedly seeks justice for gays. But it goes well beyond the concern for the gay community, Justice Chandrachud said. The effort to end discrimination against gays should be understood as a necessary part of the larger effort to end the inequality of the sexes, he said.
CONCLUSION
Merely bringing about a change in the law is never sufficient, ultimately the mind-sets of the people need to change. Despite of the judgement the LGBTQ community might continue to face violence just on the basis of their gender. Nonetheless, the court’s decision to decriminalise homosexuality is incredibly heartfelt and vindicates the dignity of LGBT people. It is difficult to overstate how these legal expressions of love inspire human rights change more widely across India (and abroad). As the Indian sociologist Anjana Raghavan has explained, a politics of love built on vulnerability, reflection, and solidarity can enrich communities everywhere.
REFERENCES
“LEGAL ISSUES: CASE STUDY OF SECTION 377-Ponni Arasu” http://www.egyankosh.ac.in/bitstream/123456789/2983/1/Unit-3.pdf
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