Section 377: Latest petition is a desperate cry for help by LGBT Indians and should be heard

When I read the latest petition filed in the Supreme Court by four of India’s most eminent LGBT persons, I thought to myself: Der hai, _par durust hai (_better late than never). The petition itself is a painful account of the lives of those who crafted it: they list their achievements in the creative and commercial fields and then state how difficult life has been because their sexuality always hung like the sword of Damocles over their heads thanks to Section 377 on the statute books. Sunil Mehra, well known and eminent journalist, even makes a candid confession that he was afraid of going for the civil service examinations because of the fear of ridicule and harassment ensuing from his sexuality being used against him. The part that was significant read thus: “The Petitioners find their lives inexorably constricted and their rights infringed by Section 377 of the Indian Penal Code, 1860. Despite their formidable achievements and contribution to India, they are denied the right to sexuality, the most basic and inherent of fundamental rights. Section 377 of the IPC renders them criminals in their own country. Section 377 IPC does not criminalize only specific acts whose commission a law-abiding citizen may avoid and steer clear of. Rather, it criminalizes the very existence of LGBT persons by criminalizing their sexuality, an attribute which is as inherent and intrinsic to a person as their race or gender. Sexuality lies at the core of a human being’s persona. Sexual expression, in whatever form, between consenting adults in the privacy of a home ought to receive the protection of Fundamental Rights. Section 377 of the Indian Penal Code infringes the Petitioners’ right to sexuality, and also has a cascading effect of barring the Petitioners from accessing the unenumerated rights which this Hon’ble Court has held flow from Article 21 of the Constitution of India” This open submission in court summaries the frustration and bitterness of being an LGBT citizen in India. One cannot find a more honest confession. This was what sets this petition apart from the other cascade of petitions, now clubbed together for the bench of the Supreme Court that is to meet in the last week of August to determine the constitutionality of Section 377 of the Indian Penal Code. Though it makes sense to read the whole petition, the sad part is that it reads as a document on ‘who’s who’ of the four petitioners — all four are eminent members of India’s rising middle class who have made a name for themselves and given their best in displaying their talents in the field they have chosen. What will and should have impressed the Supreme Court is the fact that they should have had to state the things they did – how much they have contributed to the cultural productions of this nation and yet found themselves to be second class citizens thanks to a colonial law by a foreign power in 1860s. [caption id=“attachment_2255624” align=“alignleft” width=“380”]  Representational image. AFP.[/caption] What is even more horrifying is in the year 2016 on the very day that the planetary LGBT community celebrates the beginning of LGBT political identity in commemorating the Stonewall Riots in New York city, four of these eminent citizens had to make this eloquent but pathetic plea to our Supreme Court and just got the petition shunted to the Chief Justice. As soon as the news of this petition flashed on the front pages of our newspapers, loud vocal debates had started both in LGBT spaces and social media on the sadness of it all. Though this is the first time that the challenge to Section 377 is from “those litigants most affected by it”, something that was observed by the courts right from the beginning when Section 377 was challenged in the Delhi High Court, it is also starting a bush fire in different parts of the country because of the lack of urgency in the judicial process. Imagine a litigant, eminent or common law citizen, coming to the court with a plea that his “very right to life” was being threatened by the existence of a law being used against his very being and then imagine that the court defers that plea to another court or a bench. How would the political system react to this kind of outrage and denial of justice? That is what the LGBT community is discussing. At meetings held in various LGBT groups in Mumbai, Delhi, Kolkata, Chennai and Bangalore, nearly every debate within LGBT spaces was bitter and angry that the Court heard the petition but deferred it to the Chief Justice of the Supreme Court rather than give an ad-hoc standing instruction that extortion, harassment, blackmail and discrimination stop immediately by – at the least – suspending the operation of this law till its Constitutionality be determine by the bench that would finally hear it. It is with some justification that the communities most affected by this. What is really alarming is that the harassment and violence against the community has increased manifold after the last Supreme Court judgment. The field data, gathered by the Pehchaan Project funded by the Global Fund for HIV work among male sexual minorities, has recorded more than 3,000 cases meticulously documented since the LGBT communities were recriminalized. Given the fact that just one of of manifold cases ever gets reported, imagine the real number of sexual violence, extortion, blackmail and plain discrimination that we have been facing since 2013. The communities have not been quiet since that ill-fated judgment. Transgender activists like Akkai Padmashali in Bangalore have been interacting with Lok Sabha MPs trying to get them on board through sensitization on sexuality and gender. Despite two failed attempts by Shashi Taroor and the ridicule poured on him by MPs of all shades, the communities have not gone back into the closet. On all fronts, there is the quiet determination to move ahead despite the small defeats we have faced. What marks this petition is that for the first time we have faces to the issues that we confront on a daily basis and a factual recounting of the discrimination this so-called “minuscule minority” faces. No better evidence exists that such a minority is not minuscule and will not be silent any longer. By diverting the matters brought forth by this latest petition to the Chief Justice, the Supreme Court which heard it on the 29 June 2016, has not delivered quick justice. The matter should have been heard and an interim stay ordered on Section 377 till further heating and date. That this has not happened is what makes this sad. The message is – the ball is in some other court. Of course, the fact that a colonial law enacted by a repressive British Raj should even be tested as constitutional against the majesty of the Indian Constitution, a document made and governing the largest democracy on this planet, is itself an anomaly which needs discussion but that’s for another day.