Marking two years of freedom
When the Supreme Court decriminalised homosexuality in 2018, it was a burst of relief for Nikesh Usha Pushkaran after a decade of battling depression, anxiety and bigotry.
The 36-year businessman from Kerala came out as gay to his parents and friends in 2009, only to be stung by hostility.
He tried to convince them with literature and science that homosexuality was natural and not a disease, but social strictures in conservative Thrissur and Section 377 of the Indian Penal Code – which outlawed “unnatural” sex against the order of nature – swayed their opinion. The prejudice was cemented when the top court in 2013 upheld the 160-year-old colonial law. “I cried all day,” he said.
On the morning of September 6, 2018, Nikesh and his partner Sonu, an IT professional, woke up early and parked themselves in front of the television. The couple had got married in July that year in a private ceremony but kept it under wraps, fearing the wrath of family and society.
“When the judgment started flashing, I was so happy. India got freedom in 1947. But September 6 was when people like us got freedom,” he said. They came out as a gay couple shortly afterwards, to public adulation and brickbats. “I used to be so afraid to tell anyone I am gay but the verdict gave us the courage,” he said.
On September 6, 2018 – responding to 34 petitions – the top court read down Section 377 in the Navtej Johar and Others vs Union of India case. The judgment by a five-judge Constitution Bench lifted a veil of ignominy, violence and bias. Two years down the line, the verdict’s impact is still being felt and while bias hasn’t disappeared – the suicide of a 21-year-old student in May after months of conversion therapy a prime example – the decriminalisation has spurred many ordinary LGBT persons to approach the courts on issues ranging from employment and identity to marriage and police protection.
Nikesh is one of them. In January this year, the couple challenged the Special Marriage Act 1954 before the Kerala high court and demanded legal recognition for same-sex marriage. “We all came into the world in the same way so why do heterosexuals have more rights than me? This is not fair,” he said. The case may come up for hearing this month.
His hope is not unfounded. In April 2019, the Madras high court upheld the marriage of a transwoman by deciding that the word “bride” in the Hindu Marriage Act encompassed transgender women. The case, Arunkumar vs the Inspector General of Registration, relied on the Navtej Johar judgment as well the top court’s landmark 2014 decision that affirmed the rights of transgender people (National Legal Services Authority vs Union of India).
When asked what moved them to go to the court, Arunkumar and his wife Sreeja had a simple answer – they wanted their marriage to be legal and on the same footing as anyone else’s. “This will set an example,” she said.
For two decades, the battle for LGBT rights in India coalesced around Section 377, which was seen as the root issue for a series of problems – violent “therapy” to cure homosexuality, forced marriages, violence by police or state, lack of access to health care or education.
After September 2018, the overarching issue has been replaced by a number of issues important to different groups.
“The LGBTQI community after the 377 decision has not articulated anything concrete. While different groups may have certain different concerns… what is unifying is the need for recognition of equality for all…an overarching equality and non-discrimination law is needed in the country,” said Jayna Kothari, a senior SC advocate.
The Centre for Law and Policy Research, an organisation that she co-founded, has taken cases related to reservations and concessions in age and cut-off marks for transpersons in police force to the Madras high court, among others.
Internationally, too, the 2018 judgment made waves. It was cited in anti-sodomy law challenges in Kenya, Singapore and Botswana – and in the last case, the challenge was successful and the high court of Bostwana decriminalised homosexuality in 2019.
Back home, the judgment encouraged a clutch of LGBT persons to approach lower courts to demand police protection from their families or demand constitutional rights.
In August this year, the Odisha high court ruled in favour of a 24-year-old transman and his woman partner, saying the two had the right to live with other and relied on the 2014 and 2018 judgments of the apex court.
In the last two years, reports of violence against LGBT people, especially transgender persons, have poured in from across India.
Moreover, as legal researcher Gowthaman Ranganathan argued, a number of other laws such as anti-beggary, anti-sex work and obscenity statutes exist on the books and police often use them to intimidate LGBT persons.
“Plus a host of issues around employment, discrimination, workplace harassment, education have also become LGBT issues. There is a western logic that decriminalisation leads to marriage and inheritance rights. India has a great opportunity to break that logic, focus on questions of basic rights and benefit the most marginalised,” said Ranganathan, currently at the University of Texas, Austin.
In his opinion, formal declarations by court – such as in the Navtej Johar judgment – are helpful, but how they play out in everyday life or in police station often varies.
This was visible in the Uttarakhand high court in June, when a single-judge bench upheld the right of same-sex couples to live together. The judgment – which came on a habeas corpus petition by one of the partners – was widely hailed in the press and legal circles, but what was largely unreported is that the petition itself failed because the other partner decided to go back to her family after coercion and pressure, reportedly from her parents.
Fear and longing
Few people embody the dichotomy of the promise and perils faced by the LGBT community better than Delhi residents Kajal and Bhawna [both go by their first name].
Kajal, a 26-year-old Dalit woman and Bhawna, a 21-year-old woman who belongs to an Other Backward Class decided to live together after reading about the Supreme Court verdict in an Instagram post. “We felt, we’re not criminals anymore. No one can stop us now,” Kajal said.
Yet, barely a few months later, they sought the protection of the Delhi high court. They asked the court to protect their constitutional right to live with a partner of their choice, and said that Bhawna’s family was threatening to harm them.
“One of Bhawna’s relatives threatened to kill me and my family members,” Kajal said. Bhawna who grew up facing gender-based discrimination at home was assaulted by members of her family after her relationship came to light. They stopped her from going to college, confiscated her phone and kept her virtually imprisoned.
In May 2019, the court ruled that they were free to live with each other, being consenting adults, and provided them police protection. In a later hearing, however, it also asked Bhawna to keep in touch with her family, and withdrew police protection.
A year later, Bhawna still faces harassment from her family members. They turned up outside her college in February, while she gave her exams.
“My family approached the principal of my college and asked for her help to send me home. So I told the principal that I am a lesbian, and that the Delhi high court has given me an order that allows me to live with my partner. The principal said, no one will touch you,” Bhawna said.
“I’m always afraid that my family members will turn up. But the shelter home [where the couple stayed last year after the court order] was amazing to us. I am so thankful for the people who help us to be together.”