Decriminalisation of consensual gay sex is a historic judgment for India. But LGBTIQ activists tell SANGEETA YADAV that there is still a long way to go in bringing about a change in society and getting rights like the right to marry, child adoption & property inheritance
The arc of the moral universe is long, but it bends toward justice
— Dr Martin Luther King Jr
The LGBTIQ community today has much to celebrate. For 158 years, it has suffered in silence — ostracised, humiliated, attacked and beaten by society monitors due to sexual orientation. Like Bill Pullman in the 1996 movie, The Independence Day said: “We are fighting for our rights to live, to exit. We will not go quietly into the night, we will not go vanish without a fight, we’re going to live on. We’re going to survive”.
In this regard, the scrapping of Section 377 is a landmark judgment in which Supreme Court decriminalised homosexuality. This is the first step to bring about a larger impact in society by changing the mindset of people and the demand for civic right and inclusiveness. However, the Pride Parade will continue to take place to break gender stereotypes. A long way to go in achieving this, but by raising awareness through active and continuous discussions at school, college and workplace and impactful reportage the ultimate change may come.
According to The Humsafar Trust (HST), between 2016–2018, HST’s crisis response team attended to 83 crises cases in Mumbai. Of these 83, 6 cases involved an adult, homosexual male being blackmailed by the police under the threat of Section 377 of the IPC. In 12 cases, adult, homosexual males were threatened with false accusations under this section and victims of extortion by ordinary persons, sometimes climbed to Rs 1 lakh.
While reversing an earlier decision, the court termed the Section irrational and arbitrary and ruled that the LGBTIQ community would from now on have rights similar to other citizens. In other words, consensual gay sex is no longer illegal provided it is in private. The SC also said that there should be respect for these rights and criminalising gay sex was irrational and indefensible and must be interpreted as per the requirement of changing times.
The ruling came in light of a writ petition filed by dancer Navtej Jauhar, journalist Sunil Mehra, Chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri, business executive Ayesha Kapur and 20 former and present students of various IITs. The issue was first raised by Naaz Foundation, an NGO which had approached Delhi High Court in 2001.
With this judgment, India joins the list of countries like Vatican City (1890), the US (2003), Fiji (2010), Nepal (2007), Seychelles (2018) and Canada (1969) to decriminalise homosexuality. Incidentally, it has never been illegal in countries like Indonesia, North Korea, South Korea, Poland, Taiwan and even Vietnam.
Section 377 referred to gay sex as an unnatural offense and punished carnal intercourse against the order of Nature with any man, woman or animal, with 10 years of imprisonment.
Welcoming the verdict, Ashok Row Kavi, Humsafar Trust founder-chairperson, says: “We believe this is the beginning of a new journey for the LGBTIQ community in India. This verdict comes after sustained advocacy for over 18 years on the issue. At long last, the law does not criminalise consensual sexual acts between adults, occurring in private.
“The LGBTIQ Indians can finally enjoy equality before the law, freedom of expression, personal autonomy and right to dignity as expressed in Articles 14, 15, 19 and 21 of the Constitution of India. It is now time to gear up for our fight towards further rights including legal recognition, marriage rights, employment rights, anti-discrimination laws, adoption and other legal rights which have been historically denied to us.”
Agreeing with Kavi, Yashwinder Singh, program manager at the Trust, tells you that verdict against section 377 will be a huge support to deal with the crisis cases and the fight for the human rights of the
LGBTIQ community. “All the people under the LGBTIQ umbrella can live and ask legal assistance without the fear of being prosecuted under Section 377,” he tells you.
Filmmaker Onir says that this is just a beginning. “The scrapping of 377 doesn’t guarantee us civil rights and inclusion. It is just giving us the right to have consensual sex between two adults of the same sex. But with this move, we are empowered to take the fight forward to get our civil rights, including the right to marry same-sex people, right to adoption, rights at workplace, right to inheritance and other benefits like rights that guarantee us equality, liberty, respect and dignity of life irrespective to cast, creed, gender, religion and sexuality. It is a long journey still,” Onir adds.
The director, who has made films like My Brother Nikhil and Shab, opines that his work will now get accepted and screened by satellite channels. “My next fight is going to be for inclusion. For years, I had to fight with satellite channels requesting them to show my film My Brother Nikhil on TV. Even for my last film Shab, I fought for eight months for a U/A certification from the Central Board of Film Certification and am still facing a hurdle for a satellite release. There is an unspoken homophobia that muted my voice every time I raised my voice to screen my films.
“Today, I hope they will accept the SC’s order and accept my films. There are very few people coming up with films on the LGBTIQ community. I hope that after this verdict many more filmmakers will come up and tell stories that need to be told to make the society understand and accept homosexual people. It is about becoming a better human being and a better society which accepts and celebrates people,” Onir tells you.
Filmmaker Sridhar Rangayan faced a similar fate when he started working with the LGBTIQ community in 1990 with the launch of the first gay magazine Bombay Dost. He has been organising Kashish Mumbai International Queer Film Festival for nine years which exclusively showcases films on the lives and challenges of people from this community.
“I faced several challenges. Not many people like to attend a film festival that talks about LGBTIQ people. Even companies and brands would not extend financial support. With this judgment, we are hoping to have a turnaround,” Rangayan says.
Prince Manavendra Singh Gohil, an LGBTIQ activist who has been running The Lakshay Trust which works for the community, feels that Section 377 was not used as much as it was misused by enforcing authorities. “I have been working with Lakshay Trust, the first organisation which started working with transgenders and gays in Gujarat. We have been contacted by the Government for HIV prevention and when our workers would go to distribute contraceptives for safe sex practices, they would be harassed by the police and tortured on grounds that we were violating Section 377. So this kind of misuse will stop and scrapping this law is definitely going to help us to fight HIV. It has also been notified by the Health Ministry that Section 377 has been an impediment to HIV control,” Prince Gohil asserts.
The life of homosexuals was full of hurdles earlier. A reflection of this was shown in films like My Brother Nikhil. “A lot of people were forced to live double lives as they were considered criminals. People feared to come out in open. They were made to feel ashamed for their sexual orientation. This was misused by law enforcing bodies. There are people who think that gayism spreads diseases. First, there is nothing called gayism. Second, statistics say that homosexuality does not cause diseases, unsafe sexual practices do. They misquote history, culture and science to prove their regression,” Onir says.
The fact that Section 377 has now decriminalised gay sex is a boost to the community’s confidence. “You are a citizen of this country and not a criminal. We may not be afraid now to reveal our identity” Rangayan says.
Now, while the State is behind the LGBTIQ community, the next step is to change the mindset of the people who need to accept the community. In this regard, Justice Nariman has asked the State to give wide publicity to the judgment and to sensitise key actors like the police.
“With the help of media, satellite channels and other social media platforms, we will be able to tell stories that will help people to understand and learn to accept
LGBTIQ people. It will not happen overnight. It is everybody’s duty to make the difference,” Onir tells you.
Agrees Rangayan, adding that the legal change has to be followed up with social changes. “The society needs to understand that LGBTIQ are just people with different sexual orientation or gender identity. There is nothing different about them. One’s identity is not just being gay or lesbian or bisexual. One’s identity is one’s personality, nature and the kind of work we do. We are hoping to get social acceptance at a larger level. This will give confidence to the families to support their children. We need to understand that same-sex has been part of India for centuries. It is not a western import. It is as natural as anything else. That is the change we would like to see in the people. We should talk to religious groups, Government officials, doctors. All of them have to be sensitised,” Rangayan says whose award-winning film The Evening Shadow is the curtain raiser film at the ongoing Lonavala International Film Festival.
Through Kashish Forward Programme, Rangayan is also spreading awareness amongst youth by screening LGBT films to them. “Youth’s minds are open to imbibe new ideas. I have also been a part of a group — Swikaar — which supports and connects parents in accepting their homosexual child. Children feel more confident to reach out and talk to other parents. Being gay or lesbian is not a disease,” Rangayan says explains.
Prince Gohil says the next step has to be the implementation of the judgment and advocacy at all levels. “We have to work towards implementing this judgment so that it reaches to the masses. For this, we need the support from the Government and other stakeholders to ensure equal rights and zero discrimination. We need to do advocacy at all levels and create more and more allies to get the support and acceptance from people who are not from the community. I have already designed a model which talks about LGBTIQ issues and this will get implemented at Karnavati University in Gujarat where I give lectures. I am going to provide a safe place for the people who are thrown out of their house by their parents for being a homosexual. I am also educating parents to accept their child. We can reduce the hypocrisy at the lowest level possible,” Prince Gohil says.
Dr KK Aggarwal, president, Heart Care Foundation of India tells you that the medical community has always considered homosexuality as a normal and natural phenomenon and not a disease or crime. “It becomes important now for a medical doctor to know if the person is an
LGBTIQ. Till now, many of them did not come forward and disclose their orientation fearing the law. The job of a doctor or of the judiciary is to change with the changing times and broaden, delete or re-interpret the laws as per the changing needs of the society. It is heartening that the SC is now coming to the rescue of people, which will help in reducing the mental and social disorders in the society.”
Even the Indian Psychiatric Association indicates that homosexuality is not a psychiatric disorder. Clinical psychologist Dr Pulkit Sharma, welcoming the SC’s decision, opines that the judgment is only a part of the solution. “There are a few gay couples outside of India who feel that while the passing of a law is a move in the right direction, it is the society’s perception that needs to change towards homosexuality. Till that happens, such people will find it difficult to overcome their fears and the problems they face because of their orientation,” Sharma says, adding that the scrapping of the Section will help such people facing psychological problems but the society needs to change its mindset first.
Social activist and advocate Ashok Agarwal tells you that today’s society is healthy and progressive. “People should have liberties. If two men and/or women want to live together they should be allowed. More freedom should be given. For a country to progress, it is necessary for the society to progress. We must learn something from the scrapping of Section 377. We must move beyond archaic thinking. And the good is that now LGBTIQ people will not be blackmailed by unscrupulous elements,” Agarwal states.
Tripti Tandon, a lawyer with Lawyers Collective, who represented two petitioners RS Jafar and Kavi, has a similar take and tells you that the best part is that the community will now not be blackmailed because of its sexual orientation and personality.
“First, Section 377 was used to criminalise the expression of one’s sexuality and personality because there was no distinction between consensual and non-consensual. This is gone. Second, because of this, two people of the same sex engaging in an intimate act have the same right as heterosexual people. The LGBTIQ community faced blackmail, violence and extortion. This happened to them every day and they couldn’t report it. If they did, the police would label them criminals. Now, the community can report a crime against it and seek justice. Third, the court says that LGBTIQs are entitled to a full spectrum of rights. This is very powerful. It will mean that LGBTIQ people can enjoy all rights like other citizens in every sphere, work or education. No discrimination will be tolerated,” Tandon explains and adds that the scrapping of the Section has opened the door for same-sex marriages.
She also tells you that despite the backing of the State, it is the society that needs to change. “This is the reason why the SC has urged the society to change its mindset. It has said that the scrapping of the Section has to be widely publicised and made available on social media platforms so that people read it. How does society change? Someone needs to stand up. Then only will, larger numbers will follow. That is what people did after the Naaz judgment of Delhi High Court. People came forward and said: ‘I am legal. There is nothing criminal about my personality’. This has happened again. The SC has said that LGBTIQ has full rights. When someone stands up against with them with this judgment, the society has to take notice,” Tandon says.