Section 377 traumatises and abuses LGBTs in India: Celina Jaitly | analysis | Hindustan Times
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Section 377 traumatises and abuses LGBTs in India: Celina Jaitly

On a historic day for LGBT rights in India, actor and activist Celina Jaitly writes about the nation’s archaic section 377 and more.

analysis Updated: Feb 02, 2016 07:39 IST
Celina Jaitly
Indian actor & recording artist, UN Human Rights Equality Champion Celina Jaitly.
Indian actor & recording artist, UN Human Rights Equality Champion Celina Jaitly.(Twitter)

Today will be a historic day in history of LGBT rights in India.

At a rare “open court” event today, the Supreme Court will hear a curative petition challenging an earlier apex court verdict that criminalised homosexuality in India.

A curative petition – filed, in this case, by gay activists and NGO Naz Foundation – is the last judicial resort for those seeking redressal of grievances. This has come about due to a December 2013 apex court verdict that upheld the validity of Section 377 (unnatural sexual offences) of the Indian Penal Code, followed by a January 2014 order dismissing petitions seeking a review.

Read: Will be tragic if law disregards LGBT rights: Shyam Benegal

Now, when we speak of violence and discrimination against members of the LGBT community, we refer to certain serious human rights violations – not some frivolous distraction. Homophobic attitudes fuel discrimination in various spheres of life, including workplaces, schools, clinics and hospitals.

In recent orders on two separate matrimonial discord cases involving a gay person and a lesbian, justice N Kirubakaran of the Madras high court said that lack of statutory protection for LGBT people has started affecting the very institution of marriage. He brilliantly said: “Can LGBT (people) be considered offenders merely for having exhibited their natural sexual orientation, and committed sexual acts that are different?”

Watch | LGBT to drive taxis in Mumbai, sign of social acceptance

Now, when we speak of violence and discrimination against members of the LGBT community, we refer to certain serious human rights violations – not some frivolous distraction. Homophobic attitudes fuel discrimination in various spheres of life, including workplaces, schools, clinics and hospitals.

In recent orders on two separate matrimonial discord cases involving a gay person and a lesbian, justice N Kirubakaran of the Madras high court said that lack of statutory protection for LGBT people has started affecting the very institution of marriage. He brilliantly said: “Can LGBT (people) be considered offenders merely for having exhibited their natural sexual orientation, and committed sexual acts that are different?”

Another thing that people don’t realise is that many LGBT people are being attacked in the streets – kidnapped, tortured, raped and even murdered. I have personally witnessed a few of these cases, and some involved people I know. Both the victims and their families are afraid to seek help from the authorities because the law wouldn’t favour them. In certain cases, so-called upholders of the law were themselves responsible for carrying out brutal rapes.

Read: Censor is behaving like a homophobic society: Hansal Mehta on Aligarh

An archaic relic of a law called Section 377 has put the entire Indian LGBT community directly in the line of fire. This law can be – and, in some cases, is being – used to blackmail, violate and abuse members of the LGBT community on a daily basis at workplaces as well as other spheres of everyday life. It also hinders the work of health workers in the field of HIV/Aids.

Laws are meant to protect us – not act as a platform for fanatics to blackmail, abuse, traumatise, violate and humiliate citizens who fall in a minority group. Sadly, that’s exactly what Section 377 does in India. When these same abuses are perpetrated against members of any other group of people, the authorities rightly push for a more vigorous response. So, why shouldn’t their resolve be the same when it concerns the LGBT community?

What’s more, failure to interpret laws that criminalise private and consensual same-sex sexual conduct consistently with international human rights law amounts to being a violation of the country’s international human rights treaty obligations.

Legal systems need to be upgraded with developing mindsets and global cultural expansions, not head back into the Victorian era. India, as the world’s largest democracy, needs to uphold its promise to the bonafide citizens of its country.

Change will not be possible unless there is change from within. India is going through the catharsis of that change, albeit slowly, but we need to encourage it with advocacy and nurture a spirit of open dialogue. After all, until each and every Indian is not accorded the basic right to lead a life of dignity, India cannot claim to be truly free.

Celina Jaitly

UN Free & Equal Campaign