Section 377, 3 years on: Freedom to love takes root
The landmark ’18 verdict prompted LGBT people across India to seek their rights from courts and society. The key to this advancement were residents of small towns and villages
Shanti Tudu knew no one like her.
Her village, nestled in the Ajodhya hills in the tribal hinterlands of western Bengal, was far from any city. Her parents, relatives and most people in the village subsisted on farming and forest products. Most young people moved away for manual labour, or if they were lucky, education. Her house didn’t have a television or a fixed Internet connection, and cellphone network was patchy, Yet, Tudu knew she was different.
Since she could remember, she preferred shirts and trousers over any girl’s uniform the local school prescribed, and liked the heroines of the Hindi and Bengali songs she would sneak off to watch with her friend. She didn’t know what this attraction was, if it had a name or, as her friend told her, was a disease.
Shanti Tudu knew no one liked her. When she moved an hour away to Purulia town for studies four years ago, she feverishly researched about girls liking girls, understood that it was not a disease; but confidences to friends and teachers in college were broken, and she was dragged to a local quack for “therapy”.
In 2018, she ran away from home, found a job and started living in a women’s hostel – where she met her future partner, Rekha, who requested to withhold her second name. Both had decided to never go back home, but started reconsidering after the landmark Supreme Court verdict that decriminalised homosexuality three years ago.
“I don’t understand the law too much and hadn’t followed the case. But Rekha called me up that day and said, we are not criminals anymore. Even our local papers carried big news items that day. It gave me hope,” said Tudu.
Together, they plan to tell their parents about the relationship. They are aware of the risks – their families can force them apart, confine them or file cases against one partner. But they believe the 2018 Navtej Johar judgment will shield them.
“We have spoken to a lawyer who assured that if anything goes wrong, the courts will protect us. So we are hopeful of leading a life together,” said Rekha.
They are not the only ones. Three years after the Supreme Court read down Section 377 to not apply to consenting adults in same sex relationships, lesbian, gay, bisexual and transgender (LGBT) people around India have approached the courts to seek a phalanx of rights, from seeking recognition of marriage equality to reading down of specific sections of laws like the State Police Act to protection from violence of families.
Many of these people hail from small towns and the countryside, who have used the law forcefully and creatively to expand the horizon of LGBT rights.
In July this year, the Delhi high court helped protect Anita Kumari and her partner, Priyanka Singh, both residents of Gaya town in Bihar. Kumari, 23, was in her third year of college when her parents pulled her out after she came out as lesbian.
She was locked up, prevented from meeting Singh, 25, sexually abused by her cousins and threatened by her sister and mother. After five months, Kumari escaped and went to live in Delhi with Singh.
Weeks later, Kumari’s mother filed cases against Singh and her family. This prompted Kumari to file a petition in the Delhi high court, seeking protection and asking the police to take her statement in Delhi, as she feared returning to her hometown.
On July 7, the judge permitted all her requests. “The petitioner is a major and if she has different sexual orientation, she is at liberty to live in the manner as she wishes,” judge Mukta Gupta said.
“My decision to leave my house was not made on the spur of the moment. I knew that the only way I could live with safety with my partner was if I ran away. But my family continued to threaten my partner and me. It was only after the court agreed to protect us that I felt safe,” said Kumari.
S Sushma and U Seema Agarval, two university students from the rural parts of Madurai district in Tamil Nadu, also successfully used the 2018 judgment to protect their lives and relationships – in the process also securing sweeping protections for the community.
The women met in 2019 and fell in love but battled fierce disapproval from their conservative families. On February 9, they ran away from home to Chennai, but both sets of families filed missing person FIRs in two separate police stations, prompting policemen to travel to Chennai to track them down.
Things came to a head in the second week of March, when both sets of parents, along with roughly 10 policemen showed up in cars and threatened violence. By then, the women had already filed a petition in the Madras high court.
On June 8, justice N Anand Venkatesh delivered a judgment that was remarkable for two reasons. One, the judge undertook counselling to understand the identity and concomitant vulnerabilities of the petitioners.
Two, he issued directions to a slew of state and central agencies to frame guidelines that recognise the rights of LGBT people, and ensure their safety and security. On August 31, he issued further directions to the police to provide immediate protection to all such vulnerable couples and effectively banning conversion therapy – the kind that Tudu was subjected to in her college days.
The two women know that their fight isn’t over – they are still looking for stable housing and employment, and remain fearful of reprisal from their families -- but they’re hopeful. “We want to...live our life in front of everyone. And help others like us,” said Sushma.
Legally, the troika of the 2017 verdict on privacy – where the apex court recognised sexual orientation and gender identity as core parts of privacy – the 2018 Hadiya judgment – where the top court recognised the right to choose a partner – and the Navtej Johar judgment together have paved the way for protections for queer couples.
In the last three years, people have approached high courts in Rajasthan, Delhi, Mumbai, Allahabad, Chhattisgarh, Gujarat, Chennai, Kolkata and Odisha – seeking to validate their rights and rebuff parental and social censure, all on the basis of this landmark verdict.
“The high courts have taken very liberal and progressive positions…they’re showing the way that things can change,” said Manuraj S, a lawyer at the Madras high court who fought on behalf of the Madurai women petitioners.
He referred to another 2019 verdict by the Madurai bench of the Madras high court, which upheld the marriage of a man and a transgender woman under the Hindu Marriage Act, relying on the Navtej Johar judgment, among others.
“For years, LGBT issues have been projected as elite and from the west. But the Sushma and Seema case showed that it wasn’t the case. There is a deepening and democratising of these rights. That the Madurai bench of the HC gave such a progressive judgment gives us hope that these judgments are percolating in rural and smaller regions, and people are learning about a more fairer and equal society,” he said.
To be sure, there are still big strides to be taken to ensure dignity and respect for queer life. Transgender folks continue to battle prejudice in employment, education, housing and health facilities. The 2019 transgender rights law is unclear on punishments for discrimination, has been criticised for focusing on medical checks for issuing transgender certificate and stipulating lower punishment for crimes against transpeople.
Queer folks from marginal castes and communities face hostility within and outside the community. State laws against transfolks, sex work and beggary are deployed against queer people. Manuraj pointed out that the 2018 judgment could have protected civil rights such as marriage and inheritance, but disappointingly stopped short. And petitions to legalise same-sex marriage have been pending before the Delhi and Kerala high courts for over a year, with the Union government staunchly opposing such a move.
Still, the positive social life of the 2018 verdict – it was splashed across newspapers, extensively discussed on television and coincided with rising acceptance of queerness, especially among young people – has helped cut through the stigma long attached with homosexuality and mitigate the cycle of shame, blackmail and police brutality. “Without the Navtej Johar judgment, none of this would have been possible,” said Manuraj.
Queer people are everywhere. They are dancing in prides and protesting against bias outside government offices, talking back to homophobic teachers in class and demanding trans-friendly policies in offices.
They are in our homes, in the cramped alleys of small towns, stealing glances with ones they love but dare not speak the name, in parks and lakes, holding hands as darkness descends because their homes are too hostile to their truths. They come from all castes, faiths and abilities.
For too long, queerness in India has focused on big cities, that offer a respite from the loneliness in their promise of a glitzy nightlife, parties, prides and community events. But now, even pride parades are taking root in cities like Raipur, Chandannagar and Imphal.
“Cities are enticing. But beyond the glamour of the gay parties in Delhi or Mumbai, the colours of the pride parade and the resistance and building of movements in courtrooms; many life worlds of queerness escape our sights, often invisiblised,” said Dhiren Borisa, a professor at Jindal Global Law School.
He pointed to the more muted ways in which queerness flourishes away from the big cities – the clandestine changing of clothes at a friends’ house, the evening haunts of public areas that function as silent hubs of queer intimacy, the internet cafes and mobile phones where the first brush with the acronym LGBT occurs, and the many queer and trans people who live their lives both openly, and become a part of the local fabric – the two unmarried aunties who live together as “friends”, the trans couple everyone calls ‘didi’ or the two friends who were so close that they never married.
“Not everyone can become a respectable queer subject with resources and power, or be well versed in the language and acronyms, which can be compartmentalising and suffocating, and rarely symbolise freedom. While one aspires to be in the city, there are many ways to desire and be able to survive it too,” Borisa said.
Tudu knows it well. She is aware of the challenges of being queer in her small town – there are no support groups, people look at her like she’s an alien, her family has ostracised her and there are no fun nights or events she can take Rekha too. Yet, she is averse to moving away. “We met each other here, and have built a life here. Who said we have to go to big cities to love?”