By Anand Grover and Tripti Tandon
September 7, 2018
Today is an historic day for India. The Supreme Court has decriminalised sex between consenting adults in private under Section 377.
With the judgment of the Supreme Court today, we, Indians, have attained a second Azadi for those who have continued to be persecuted after Independence by the law enacted by the British in 1861. It has freed the LGBTQI communities from the yoke of a colonial law. This will usher in a new inclusive India which is the need of hour. This is a profound change. The LGBTQI communities can walk tall and openly with their heads proud and held high as equal citizens with dignity, liberty and fraternity. This will open new vistas for other challenges and opportunities, which will be welcome. A lot of people have waited a long time for this day. It has come at last.
Victory could not have been sweeter than this after years of struggle and after many setbacks. Though the wait was a long one, from 2001. But it has been well worth it, with all its ups and downs.
It all started in the offices of the Lawyers Collective in Mumbai after the great victory in the HIV field, that magnificent judgment of Justice VP Tipnis in Mx Of Bombay Indian Inhabitant vs M/S. Zy And Another (1997). That verdict directed that all HIV positive persons who were functionally fit to do the work could not be denied a job in the state or public sector.
The judgment received a great deal of publicity and soon gay men were knocking on the doors of the Lawyers Collective office. We realised fairly quickly that the bane of most of their complaints — stigma, discrimination and blackmail by the police of dating partners — arose from Section 377. The availability and accessibility of services for HIV was impeded and young gay men were reportedly subjected to conversion therapy by their families We decided that Section 377 should be challenged.
Naz Foundation filed the writ petition in the Delhi High Court through the legal team at the Lawyers Collective. It was dismissed by the Delhi High Court on the ground of maintainability. In the challenge to that order, the Supreme Court firmly said that the matter must be decided on merits and not technicalities.
Soon, other groups joined the fray with Naz Foundation in the Delhi High Court. Others opposing us also put in their might — they were of the view that HIV had nothing to do with gay rights. The Government of India filed contradictory affidavits — the Health Ministry supported the petition and the Home Ministry opposed it.
Ultimately, the Delhi High Court, in a seminal judgment in Naz Foundation, pronounced the decriminalisation of sex between consenting adults in private. Well reasoned and deep in understanding, it liberated the LGBTQI communities from a colonial era law.
Unfortunately, the euphoria of the high court verdict was short lived because the Supreme Court in Suresh Kumar Koushal vs Naz Foundation trumped it. But the Koushal judgment was short-sighted, narrow and unreasoned in its approach. We wrote a large number of articles that Koushal was wrong and it was bound to be set aside. Of course, we filed review petitions, which were dismissed. Then we filed curative petitions, which are still pending.
The first blow to Koushal came with the NALSA vs Union of India (2014) judgment. Carefully written, and without overstepping its jurisdiction (as it sidestepped Koushal), it granted gender recognition on a self-identification basis to the transgender communities. That was one wicket down in a three-wicket match.
The other wicket fell with the privacy judgment of KS Puttaswamy vs Union of India and Others (2017). The Supreme Court, through judgments authored by different judges, held that the treatment of privacy in Koushal was wrong. The second wicket was down. Now, only the final wicket had to be taken. Victory was, thus, a foregone conclusion. The questions asked by the judges in the Supreme Court in Navtej Johar vs Union of India only confirmed this.
The verdict of the Supreme Court, therefore, is not unexpected. But it is a watershed moment in our history. In the historic verdict, the Court emphasised the many strands that make up India, the centrality of individual freedom, reaffirming that old adage, “unity in diversity”.
It will throw up several challenges on equality and discrimination. Suppressed for a long time, the LGBTQI communities in India will demand their rightful share in all spheres of life. Not only in employment, but in education and services and all other spaces, both in the public and, especially, the private sector, for which there is no law at the moment. That journey will shape new lives for all citizens.
Similarly, the law on rape is inadequate to address non-consensual sex other than within the binary of man-woman sex. Such is also the case with sexual harassment. These apart, there will be the demand for a same sex marriage law. Though that may take time, as it has in many other countries, a civil partnership law can easily be brought in as an interim measure.
Queerala Member: Legal Change without Social Change Isn’t Very Effective
By Vishnu Varma
September 7, 2018
The Supreme Court’s watershed ruling on Thursday decriminalising homosexuality has been a cause for celebrations around the country, especially among a vast array of queer groups who have been waging a long fight. In Kerala too, on Thursday evening, at specific places in Kozhikode, Kochi and Thiruvananthapuram, LGBT activists and members made merry, distributed sweets and confidently asserted that they had finally found freedom at last.
Queerala, which initially began as a support system for members of the LGBTIQ+ community operating through informal channels, is today a prominent voice for the marginalised in Kerala. The state was the first in the country to implement a progressive transgender policy by the previous Congress-led administration. However, a vast array of conservative sections and influential religious groups have ensured that conversations about queer identity are still not brimming to the surface as they ought not to.
Rajashree R, who identifies as a Malayali bisexual woman, is a board member at Queerala and reacts with a mix of optimism and caution to the partial takedown of the colonial Section 377 of the IPC by the top court.
“I am very happy of course. At the same time, I know legal change without social change isn’t very effective. For instance, while everyone was busy celebrating, I was on phone with a lesbian woman from Kollam whose partner is locked up by her parents in their house in Trivandrum. I don’t know if this change in law alone would be enough to convince their parents to let them live their lives happily,” Rajashree told indianexpress.com.
But she adds, “At the same time, I see many coming-out posts by some of my friends who are from relatively privileged backgrounds. This ruling has actually given them the confidence to come out to the world and be comfortable with their identities.”
There are no actual statistics but activists have repeatedly pointed to a large number of cases of suicides and self-harm taking place in Kerala on a daily basis which are never reported. But, they are very often intertwined with the discrimination meted out to the individuals by their families and the society at large. The ruling on Thursday is believed to end this discrimination and help the society better understand the Queer identity.
“[I am] remembering all my friends who killed themselves because of homophobic people in their lives. At that time, the reason for their deaths was and still remains ‘unknown’ to the world. This does not mean that they were ‘callous’ or they ‘died over nothing’,” says Rajashree.
“They had a reason, the law has acknowledged it and it is time that people acknowledge it too. If not, more precious lives will be lost,” she adds.
The next logical step that the judiciary must take, she says, is to examine the marriage and adoption laws for members of the community. Implementing the transgender policy in Kerala should also be the priority, she says.
LGBTQ Community across India Is Celebrating the Landmark Verdict of the Supreme Court of India to Decriminalise Homosexuality
By Anju Agnihotri Chaba
September 7, 2018
Manjit Sandhu (44) and her partner Seerat Sandhu (28) from Jalandhar had got married in April last year at Janta Mandir (Temple) in Pucca Bagh area.
“We are extremely happy today and we hope that in future, we can get our marriage registered legally,” said Manjit, a constable posted at Kapurthala Modern Jail, on Thursday, after the Supreme Court legalised gay sex. Both feel that this decision will also end the discrimination against the LGBT community across India.
“We used to move around openly earlier too but people used to humiliate us. Now, I think this will end, finally,” said Sandhu, who hails from a village in Amritsar but is settled in Jalandhar for over 15 years.
“It is not a crime but one’s wish to live life with someone one likes. Our society should accept that,” said Seerat.
“My partner is studying… I want her to complete her studies. She will appear for her Class X exam next year,” said Manjit.