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This law has to go: It’s time to walk the talk on Section 377

Law being abused by the police and unscrupulous elements to harass LGBT community but political class is in no mood to scrap it.

opinion Updated: Dec 19, 2015 13:51 IST
Dhrubo Jyoti
Dhrubo Jyoti
Hindustan Times
Section 377,LGBT community,gays
LGBT activists at the eighth Delhi Queer Pride parade in November. The activists demanded the repeal of Section 377, a law that criminalises homosexual relationship.

December is turning out to be a bad month for queer rights in India.

Two years ago this month, the Supreme Court overturned a 2009 Delhi high court judgment and recriminalised homosexuality. The apex court put the ball firmly in the Parliament’s court, saying legislators had the prerogative to decide on rights, laws and bills.

On Friday, the Lok Sabha showed it might not be ready to pick up the ball, blocking the introductionof a private member bill by Congress MP Shashi Tharoor to read down section 377 and defeating the motion in a lower house vote.

The defeat sent waves across social media and television channels--with many expressing their disapproval for the colonial-era provision that prescribes a 10-year punishment for anyone practicing unnatural sex.

But for many LGBTQ activists, the disappointment was familiar territory with the political dispensation failing to engage with the section 377 question for over a decade now.

The struggle against the draconian section first surfaced in the early nineties when a brave handful of activists came out and later peaked with the 2009 Delhi high court verdict that decriminalised LGBT lives.

Despite the Supreme Court order, acceptance of the queer community has surged across the country in the past few years, especially in urban spaces.

Increased visibility of lesbian, gay, bisexual, transgender people across television, print and online media has added to their growing portrayal in popular culture - which has moved away from the usual crude lampooning.

Even our politicians have shown remarkable alacrity in passing the transgender rights bill through the Rajya Sabha earlier this year.

READ: Section 377 and the biases against sexual minorities in India

Most prestigious academic campuses now have queer collectives, advertisements and books regularly feature LGBTQ characters and thousands of colourful, cheering people take to the streets every year across different cities for vivacious pride parades.

But the noose of section 377 hangs over it all - a festering weapon of harassment, intimidation and violence. Activists allege the law is a potent tool in the hands of the police and unscrupulous elements to extort money, triggering suicides. It is used against the most vulnerable of the community - transpeople who are sex workers or on the streets - those who live in semi-urban or rural areas where the gaze of the media doesn’t reach. It thwarts public health schemes and helps HIV/AIDS proliferate by stigamatising sexual behavior.

But far more devastatingly, it criminalises whole classes of Indians based on their identity and preferences and adds to a pervasive atmosphere of fear where gender and sexual minorities can be thought of as expendable.

Section 377 doesn’t use the word ‘LGBTQ’ and so unnatural sex could also mean oral sex among straight couples but the law is still disproportionate

Its presence stops LGBTQ people from ever approaching the police - as a result, rapes and assaults are almost never reported. LGBTQ people are regularly discriminated against at homes, schools, colleges, workplaces and on the streets - facing unmentionable violence on a daily basis - but all in silence. Many face the demon of conversion therapy or corrective rapes.

Unfortunately, our political leaders have never been able to unequivocally deny the law. Initial decades of silence gave way to some hostility in the past few decades but the situation has always been one-step-forward-two-steps-back.

The then UPA government had opposed the 2009 verdict delivered by the Delhi high court but neither the Congress nor the BJP appealed against the verdict - a rare ray of hope. But despite a flurry of supportive statements by senior leaders, the Congress did little to get the section thrown out.

It has been a mixed bag with the current ruling party too. While finance minister Arun Jaitley admitted it was probably time for the section to go as it was not possible to imprison so many, his party has taken an openly homophobic stand. In 2013, home minister Rajnath Singh called gay sex “unnatural” and yoga guru Baba Ramdev is still offering his controversial procedure to “cure” homosexuality.

READ: Hunting for a home not easy for transgenders

Meanwhile, the world has marched well ahead. Most western nations, including the United Kingdom, have scrapped any such archaic rules while 2015 has seen marriage equality campaigns win very visible victories across the globe.

It is time for India to catch up.

Our MPs and MLAs need to realize that the fear of a conservative backlash cannot be the reason to deny thousands of people their fundamental right to live with respect and dignity. That the citizens of a country cannot be criminalised and their lives delegitimised due to a Victorian-era law that has been scrapped in its parent nation.

Using the excuse of the matter being sub-judice is also not acceptable as the judiciary has clearly put the onus on the legislature to safeguard the lives of its citizens - a job that the government is failing miserably at when it comes to LGBTQ lives.

LGBT activists protest against the apex court's order on Section 377 at Jantar Mantar in December 2013. (Washeem Gashroo/ HT photo)

The demand for queer rights and the repeal of section 377 is in consonance with the articulation of other rights-based movements, say the women’s movement, the lower-caste movement or the adivasi movement - the struggle is against a common oppressor, patriarchy.

So the next time we have a bill on the floor of the house, all politicians who have been supportive in statement, need to walk in and vote in equal measure. Words are cheap, actions are not. What the LGBT community needs, nay demands, is swift redressal of violence against them and an affirmation of their rights. Neither can happen with homilies or with television statements. It is time to walk the talk on Section 377.

(The writer is a journalist with Hindustan Times. The views expressed are personal.)

First Published: Dec 19, 2015 13:51 IST