by Makepeace Sitlhou
In what could be a monumental decision for India a day after International Human Rights Day, the Supreme Court of India is set to deliver its final verdict on the constitutional validity of the section 377 of the Indian Penal Code. Legally, it has been a 12 year long fight that began in 2001 by a petition filed by the Naz Foundation to de-criminalize intercourse between consenting adults of the same sex.
For the queer pride movement in India, however, it’s been a struggle since decades now. Despite proven existence of homosexuality and transgender in Indian history, members of the LGBTQI (Lesbian, gay, bisexual, transgender, queer or questioning and intersex) community have faced harassment, discrimination and violence by almost all quarters of society whether religious, legal or at the workplace.
Last month, when queer pride parades were successfully organized in metropolitan cities like Bangalore, witnessed the arrest of 14 men in Hassan (Karnataka) on charges under IPC 377 carried out by a police raid on the night of 3rd November 2013.
The verdict is highly anticipated to follow the landmark judgment by the Delhi High Court in 2009 that struck down sodomy “as sex against the order of nature” between consenting adults, barring non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.
Gowthaman Ranganathan, a lawyer with The Alternative Law Forum (that has facilitated a nation wide consultation along with other lawyers, Naz foundation, parents of LGBT persons, academicians, Shyam Benegal and mental health professionals as a part of ‘Voices Against 377’) said the SC bench would either uphold the Delhi High Court judgment, decide against it or refer it to a larger bench for a final verdict.
"We will, of course, welcome the support of the 2009 judgment or even the third option since there’ll be no stay in the verdict and the Delhi High Court judgment remains applicable until the final verdict," said Ranganathan.
Activists in the queer community are keeping their fingers crossed as they await a judgement that could immensely change the tide of gender rights movement in India.
Manak Matiyani, a gender and queer rights activist in New Delhi, believes that a queer favourable judgment would go a long way in shifting the balance of power in society.
"The law is a big part of how people look at themselves. Change in law will be a step towards asserting someone’s identity and sense of being. For a lot of people like those in the transgender community, it would mean finding a space other than sex work that a whole of people are forced into for the lack of better options," said Matiyani.
Shyam Konnur, a queer activist and organizer of the Bangalore Queer Habba, also thinks its one big step towards acknowledgment and acceptance by the society.
"For everyone till now, it’s just a ‘gay law’ but the SC verdict tomorrow could help the society in understanding it more broadly. Prior to the 2009 verdict, a lot of my friends and colleagues didn’t even know gay people existed in India except for the movies,"Konnur said.
Not surprisingly, there are several factions in India that have been consistently challenging the petitions against 377 as well as the ruling by the Delhi High Court. They include the Delhi Commission of Protection for Child Rights, Apostolic Churches Alliance and Utkal Christian Foundation, All India Muslim Personal Lawboard and SK Tizarawala, a representative of Baba Ramdev. Although not as a direct challenge or violation, the Presbyterian Church of Mizoram disregarded the Delhi HC verdict when questioned on the move to break ties with the Presbyterian Church of North America after the latter allowed ordination of gays as priests in 2012.
Konnur doesn’t believe religious or right wing groups could be moved by the pain and suffering of the queer community.
“I would ask them to not just read one verse and build their whole imagination around it when history shows our existence from the ancient ages. Also, why are they focusing to uphold this one verse or code while disregarding the rest?” he said.
“I’ve never seen these outfits unite to protect anyone’s rights or even seen them eye to eye on any matter. So the fact that they would unite for a cause that would take away people’s rights says enough about them”, Matiyani said.
Apart from favour and opposition, there’s a wide agreement over the long path of struggle that lies ahead for fighting for equal rights for all.
Shalini, who works in publishing and has been part of the Delhi Queer Pride Committee, says the verdict is just a first step and there’s a lot to do in terms of education and awareness.
When asked if a positive judgment by the SC would mean a third wave for lesbian women and trans(wo)men, she said, "Just like the challenges faced by women in the heteronormative society, same things come into play for lesbian women if not more. It might mean more visibility for them but I’m not sure just how far would acknowledgement go. But the verdict might result in a coming of age where younger people will make a more open choice with respect to their sexuality."
Tushar heads ‘Queer Campus Bangalore’, supported by Sambhavana Trust, that young people reach out to for support for counselling and resources for matters like peer pressure, bullying, parents and financial support. He says that the SC judgement will provide the safety net that could protect young people from harassment.
"When I read about the Delhi High Court judgment in 2009, I jumped with joy. My mom asked me why I was so happy but I couldn’t give her a reason. I definitely think more people will come out because they will not fear the law any more. For us, families we can deal with. How do we deal with the law?" said Tushar.
As activists and the queer community nervously await the judgement by the Supreme Court today, there’s hope for this verdict to be the final nail in the coffin for IPC 377.
Calling it the last lap of struggle for 377 but only the tip of the iceberg for the LGBTQI, Rangananthan said, "We are looking to move forward to demand for equal rights in a whole range of issues from livelihood, health care, marriage equality, adoption, discrimination in the workplace, SRS surgery to employment."
Activists and supporters will be gathering today in Town Hall in Bangalore and Jantar Mantar in New Delhi, in preparation for either a celebration to mark what could be a historical turning point for the country or a protest for constitutional rights for all irrespective of gender, sex and sexual orientation.
Makepeace Sitlhou is the Community Editor with The Alternative (www.thealternative.in) and writes on issues of gender, human rights, sexuality and marginalization.
Updated Date: Dec 11, 2013 08:49 AM