India has been in the spotlight on the key issue of homosexuality. The Supreme Court on July 17 said that it is reserving its decision on Section 377 after four days of hearing petitions for banning the Act that criminalises homosexuality. Apart from criminalizing homosexuality or consensual same-sex relationships, Indian law criminalizes oral sex among heterosexuals. Nothing changed after the widely watched hearings were over.
The constitution bench, headed by CJI Dipak Misra, and comprising Justices Indu Malhotra, DY Chandrachud, Rohinton Fali Nariman and AM Khanwilkar said, “The moment we feel convinced there is a violation of any fundamental right, we will strike it down and not leave it to legislature.”
Section 377 affects society in more ways than one. What we must understand is that sexual orientation and preference are two different aspects. Homosexuality is a person’s preference and not a disease as many homophobic people like to believe. And just because heterosexuality is common, it doesn’t mean it is the norm and that the LGBTQ community violates it.
The community wanted the government to over turn Section 377. That didn't happen. However they have highlighted some of these points after the hearings were concluded.
- Supreme Court should have removed criminalisation of homosexuality long ago.
- The discussions around Section 377 for the first time moved beyond adult consensual sex.
- Verdicts can overturn any time in favour of and against LGBTQ community.
- No expectations from the judiciary to legalise homosexuality anytime soon. Curative petitions don’t work.
The LGBTQ community felt that this was just the time for the SC to repeal the discriminatory law. While the judges and arguments proved to be progressive, the conclusion didn't bring change. Talking about it, Miss India and International Transqueen 2018, Nitasha said, “There has been a long battle for the removal of Section 377 in India and it should have been taken long ago because other countries are really advanced in that sense.”
"We are where we were in December 2013, so it seems to me that these curative petitions are an eyewash" - Prof R Raj Rao
“At this point in time, the government should see us with humanity first and not judge us for same-sex relations or unnatural sex. It is about humans and their choices of who they want to be with. We too vote for the government so that they can protect us.”
Human Rights activist, Harish Iyer who is a petitioner in the case, said that the jury is progressive and well-read in the matter. “This time the discussions in the Supreme Court did not only border on consensual same-sex between adults but also spoke about the fact that the LGBTQ people have been ostracised for many years and the judges have taken notice of it.”
“All we ask for is the reading down of the law so consensual sex between two adults does not fall into its purview which was what the Delhi High Court had ruled in 2009 because there is no law that protects non-female persons from sexual assault in the country, which does come under Section 377. It also protects animals in cases of bestiality.”
CHANGE THE THINKING
How will India ensure that the LGBTQ community is not mis-treated? The change will only come through greater support from the government and the judiciary, notes Nitasha. “Abroad, when things like pride parade happen, it becomes a moment of happiness and everybody comes out to celebrate. Recently, a transgender person became Miss Spain, so imagine the kind of acceptance when a person fights the system to enter a pageant and wins it. We have much to learn from such incidents happening around the world.”
Priyanka Patil, a supporter of the LGBTQ community, who works in communications, says change is slow. “On the social aspect, erasing the stigma surrounding LGBTQ community will take time. The so-called developed countries, too, still face this issue. Decriminalising homosexuality is the first step, but it is not enough. Raising awareness and educating people will follow once we remove the aspect of decriminalisation. For me, the civil aspect is important. Abolishing Section 377 will help address other issues like right to marriage, domestic violence, divorce, adoption and many other fundamental rights. These are the real issues on ground.”
CYNICISM AGAINST JUDICIARY
However, there are a few from the community who remain sceptical about the apex court actually wanting to repeal the law. Writer and Professor R Raj Rao is one of those who is convinced that inherently the court isn't keen to support the community. “I have always been cynical so I knew that it’s not going to happen. All the activists, after the privacy judgment came through, thought that now is the time that the judiciary will repeal homosexuality criminalization but I was very sceptical, so in a way I am proved right.”
“We are where we were in December 2013, so it seems to me that these curative petitions are an eyewash. It is just hoodwinking the LGBTQ community. It has been very rare that SC has reversed judgments and curative petitions hardly ever work.”
"When Supreme Court took up Section 377, I felt quite positive about the proceedings. It was quite clear, that the advocates of 377 had nothing new to say than stating conventions. Therefore, it is disappointing when they reserved the verdict," - Priyanka Patil
The interest in and the focus on the issues around Section 377 is at its peak in India. “When Supreme Court took up Section 377, I felt quite positive about the proceedings. It was quite clear, that the advocates of 377 had nothing new to say than stating conventions. Therefore, It is disappointing when reserved the verdict,” said Patil.
The government and the judiciary must understand that the time should come where everyone recognises homosexual relationships far more than sex between two adults. As Menaka Guruswamy, supreme court advocate contesting Section 377 said, “How strongly must we love knowing we are unconvicted felons under Section 377? My Lords, this is love that must be constitutionally recognized, and not just sexual acts.”
There remains no change in law. But India is more knowledgeable and aware, and hopefully thanks to these recent hearings, we would have moved a step close to repealing Section 377.