377: What we won, what remains | Analysis - Hindustan Times

377: What we won, what remains | Analysis

BySaurabh Kirpal
Sep 05, 2019 08:34 PM IST

The SC judgment marked a coming-out moment for the LGBT community, but challenges persist

With Section 377 read down, it’s time to talk about the missing rights of the lesbian, gay, bisexual, transgender (LGBT) community. It was on September 6, 2018, when a five-judge Constitution Bench, presided over by the Chief Justice, pronounced its verdict in the matter of Navtej Johar v. the Union of India, which sought to read down Section 377 of the Indian Penal Code that criminalised homosexual sex.

Homosexuality was not an import from a decadent West. It was homophobia that was imposed on us(Samir Jana/HT PHOTO)
Homosexuality was not an import from a decadent West. It was homophobia that was imposed on us(Samir Jana/HT PHOTO)

On that day, I had entered the court room with cautious optimism. But I left it in a state of near euphoria. The judgment was like a beacon promising complete equality to members of the LGBT community. But a judgment alone does not change people’s lives. Other people do.

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What was revealing were the reactions. The mainstream media was largely positive. This was in stark contrast to the 2010 sting operation on professor Ramchandra Siras of Aligarh Muslim University that was conducted by TV channels, “exposing” his homosexual activity.

Soon after the Supreme Court delivered the judgment, virtually all political parties appeared to agree. There were no large demonstrations by people against it. This seemingly ready acceptance reflects the fact that contrary to the belief in some quarters, homosexuality was not an import from a decadent West. Rather, it was homophobia that was imposed on us.

Section 377 was enacted in 1860 at the behest of Lord Macaulay, who had refused to even permit a discussion on the subject as he found it odious. Shortly after, in 1871, transgender persons were deemed a “criminal tribe” whose movements were restricted. They had to report every week to the police station. The law was only repealed in 1949 by the newly formed government of Independent India.

On the other hand, Indian culture is replete with stories of fluid sexuality. We may not be vocal about it, but tolerance to alternative sexualities is a part of our DNA.

This would imply that the cause of the LGBT community should be quickly adopted by society. However, this is not yet the case. So much has changed in a year, but much remains the same. A year later, a gay couple still cannot open a joint bank account, or get a family insurance policy with their partner. Forget gay marriage, a gay partner still cannot claim a share in the property of his partner, or even get access if a loved one falls ill. Discrimination against the community remains endemic. The latest amendments to the surrogacy law exclude any chance that LGBT persons have to become parents.

Change in any society is a slow process that requires constant effort on the part of those who wish to see the change. The SC judgment certainly lays the foundation for it. It provides constitutional, and more importantly, moral backing for people making the case for tolerance and equality. However, the judgment of a court is not a magic wand that will make the population wake up one day and start loving the LGBT community.

Homophobia has its roots in ignorance, which will have to be tackled by raising awareness and cultivating empathy. Members of the LGBT community and their supporters and allies must engage with the public to make them aware that sexuality is just one facet of our personality. A gay person is not merely a gay person, but a loyal friend, a loving family member, and a sympathetic colleague.

The Delhi High Court judgment of 2009 had given the community its first whiff of freedom. Over the years, there have been pride marches, community mobilisation, and sensitisation work. The efforts of activists and community members who came out to the streets, often at their own peril, have had an indelible effect. Even when the SC initially reversed the Delhi High Court judgment, and refused to acknowledge the “so-called” rights of the “minuscule minority” — as the 2013 verdict put it — the community refused to go underground. They carried on fighting against prejudice and discrimination.

However, the task of engendering empathy and tolerance is hard. Actual change requires convincing people that the LGBT community is not asking for special rights. They are only asking for rights that straight people enjoy, and may not even be aware of. Straight people aren’t amazed that the law allows the opening of a joint account or a couple membership of a club — they take it for granted. They will have to be made aware that it is these basic rights that the LGBT community is fighting for.

I don’t look forward to a day where LGBT people are special. I just look forward to a day when we are as mundane as any other straight person. That is not to say that we should lose our identity, but that sexuality should be just another aspect of our personality that does not impact how society treats us.

For the longest time, discussion of homosexuality was taboo. It was mentioned only as a joke in cinema or as a slur on playgrounds. The SC judgment has changed all that and this has been the coming-out moment for the community. LGBT people have to start living their life freely and openly — the closet, after all, is only good for clothes.

Saurabh Kirpal is a Supreme Court advocate, and was one of the lawyers representing the petitioners in the case of Navtej Johar versus Union of India
The views expressed are personal
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