May 08, 2014

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SC Ruling A Shocker For LGBT Community

- Pallav Patankar, Director-HIV Programs [ The Humsafar Trust ]

Pallav Patankar

For me, 11.12.13 will go down in history. As Director HIV programs of The Humsafar T rust, (India's oldest LGBT community organization) I have seen many an upheaval.

As an openly gay man, I have suffered several insults in my academic as well as professional career. It has seldom broken me or made me cry. The Delhi High Court verdict of 2nd July 2009 had set me free. It made me a free gay man in a modern India, which was beginning to understand the discourse of sex, gender and sexuality. It was an India that had begun to evolve and understand its own citizens, its own morality and a country which had begun to question its inherent dichotomy of having a Constitution which at times was divorced from the Judicial system. It made me feel proud that as a gay man, my community was making this issue more pronounced by its arguments in the section 377 case. This progress had resulted in a wave of change. A change that was probably not obvious to the entire spectrum of the Indian society but a change that created an inner confidence among the LGBT community. We saw members of the LGBT community come out in the open about their sexual preferences.

Children spoke to parents about their sexuality; they unburdened themselves to an extent in doing so. Parents of LGBT children heaved a sigh of relief; their beloved children were not criminals anymore. Employees came out at work places; employers welcomed LGBT employees and implemented workplace-friendly policies for them. LGBT support groups bloomed in corporate homes, Queer film festivals sprung up in commercial cinema halls, lesbians who lived in the darkest closets were finally seen and women's sexuality in India was at the point of being redefined. Queer businesses were incorporated and marketing companies started eying the pink rupee. Health workers and health providers were not worried anymore about providing services to the LGBT community, condoms could be distributed and the fight against HIV also addressed stigma and human rights violations. The revolution within the LGBT community had begun.

The Delhi High Court Verdict of 2nd July 2009 was not just a verdict that described how it was OK for two men to have sex. The verdict for the first time looked at the need of a same sex loving person's need for intimacy. The verdict looked at same sex loving people as individuals with hearts, minds, opinions, needs and the rights of an Indian citizen. For the first time, it looked at constitutional provisions and their applicability to this population. For the first time, the honour and dignity of the lives of millions of LGBT community members was being upheld in this country. For the first time, it seemed that the constitution enshrined by Dr. Babasaheb Ambedkar was being read in true spirit and being applied to all citizens of this country. For the first time, it was felt that the secular view of this country was being upheld rather than the right wing rhetoric of several factions that opposed the reading down of section 377.

All section 377 did was criminalise people on the grounds of their natural orientations of being same sex loving. A law coined in 1860 by the British, it did not understand in the current context, the changing nature of the sexuality and gender discourse that currently happens in this country. Not only did it not understand it, but also penalised heavily the act of homosexual love by a life imprisonment sentence. It is a law based on Victorian morality and there is no semblance of Indian culture that speaks of tolerance, acceptance, diversity and respect in its Constitutional provisions.

While it may be argued that the law has been seldom used, what is important is to analyse the psychological impact of living a life, branded as a criminal. This aspect has immediate implications on the LGBT individuals' constitutional right of Article 21, the right to life and that too with dignity.

Post the Delhi High Court Verdict of upholding LGBT rights and reading down of section 377 for consensual adult acts in private, the matter was referred to the Supreme Court of India. The Delhi High Court did not stay the order and made it applicable. Its applicability in all of India was widely debated, however logical analysis maintained that constitutional arguments apply to all of India and cannot be restricted to any state. Hence, the Delhi High Court Verdict applied to the entire country unless any specific High Court pointedly disagreed with the reading down. This was a great respite to the entire LGBT community and the empowerment of smaller groups in smaller towns and villages had begun to fructify into a movement that was not only urban but also rural.

However, the good times didn't last too long. The Supreme Court ruling came as a shocker for the LGBT community. Most importantly, the timing couldn't have been worse. The Supreme Court has clearly mentioned that they do not see any matter of unconstitutionality in Section 377 thereby not holding up the Delhi High Court's Decision on section 377. The matter is hence referred to the legislature for discussion and assessing the constitutionality/ unconstitutionality of the aforesaid section. One hopes that the parliament acts on the matter soon, else we will have to wait until the next general election and the formation of the next parliament at the centre.

The Supreme Court verdict will have far reaching consequences on the LGBT community. Overnight, all LGBT individuals have been suddenly attached with a criminal status to an act of love that they feel is natural and in line with their natural sexual orientations. Many individuals who have come out as LGBT individuals to their families, friends, neighbours, employers suddenly feel vulnerable about their positions. Was it a mistake to take the finality of the Delhi High Court Verdict seriously, was it a mistake to repose faith in the Judiciary, which has always been seen as a sanctuary for the intelligent and articulate and those espousing human rights. What happens to the queer businesses, LGBT support groups and LGBT Community based organisations, are they all deemed illegal. Would our outreach workers and health care givers be branded as criminals if they were to provide services to a "criminal activity"? Would the renewed stigma and discrimination result in greater mental health issues within the community. How will we tackle the onslaught of psychological disturbances, suicides and human rights violations that will follow with this re-criminalisation.

It's about time India, its parliamentarians and its judiciary wake up. While the LGBT community needs to remove the stain and stigma of their recriminalized status, it would be important for the community to labour on and make the change. We need an over arching anti Discrimination law that prevents any form of discrimination. This law could encompass the angle of sexual orientation and could allow for other aspects of discrimination that exist in this country. It would be important to assess the gender neutrality of laws. However, the main crux is that to live a life of dignity, mere decriminalisation will not be enough. Laws that actually uphold the dignity of the LGBT individual in terms of access to education, health, social security would need to be legislated to respect the concept of Article 14 of the constitution, The Right to be Equal!!

We as an LGBT community have a long battle ahead!!

Disclaimer - The views expressed in this article are the personal views of the author and are purely informative in nature.

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