News of the horrific mass shooting in a gay nightclub in Orlando, Florida in the wee hours of last Sunday saw the LGBTQ+ community across the world come together once again to underline their prolonged battle for inclusion into the mainstream society. At a time when gender is no longer supposed to be a binary and voices from across the public spectrum worldwide have cited support for the community, one might wonder just long their resilient struggle is likely to last.
To begin with, India hasn’t exactly made trailblazing progress when it comes to acknowledging the concerns of the queer community. Section 377 of the Indian Penal Code, dating back to 1861, places consensual sex between homosexuals under the category of “unnatural sex” and is punishable by law. This section was previously decriminalized by the Delhi High Court in July 2009 with respect to sex between consenting adults. However, in a surprising move, the Supreme Court overturned this judgement in December 2013 holding that “amending or repealing Section 377 should be a matter left to the Parliament, not the judiciary.”
The aftermath of this judgement set off waves of outrage across LGBTQ+ rights activists all over the country. (Mis)use of Section 377 to blackmail and harass members of the LGBTQ+ community were reported since. Efforts to revoke this archaic law have largely remained ineffective.
Eminent personalities including Nobel laureate Amartya Sen, accomplished writer Vikram Seth and politician Shashi Tharoor, have actively endorsed their support for the community. Despite having gained spontaneous and widespread momentum, the issue of LGBTQ+ rights hasn’t been able to establish a firm ground in the eyes of law-makers. Several curative petitions were filed challenging the 2013 judgement but were repeatedly dismissed by the Supreme Court.
In March 2016, the Lok Sabha voted against a private member bill introduced by Shashi Tharoor to decriminalize homosexuality for the second time in a row. He had previously brought in a similar bill in December 2015, seeking amendment to the “colonial-era” Section 377 of the IPC. This monumental decision further restored ambiguity regarding the status of homosexuals in the country. Expressing disappointment over the vote, Mr. Tharoor said, it was “religious bigotry” of the ruling party that had disallowed discussion on his private bill.
Section 377 represents a repressive, bigoted and ridiculous attempt at prosecuting individuals for choosing to engage in consensual sex. Besides curbing the personal freedom of those involved, it also challenges their individual identity on the basis of their sexual orientation. It only seeks to highlight the nebulous, homophobic sentiments of those who advocate against repealing it.
The argument that homosexuality or queerness, in general, is influenced by the Western discourse seems particularly absurd especially since India itself has a rich, complex and varied background, with established past references of LGBTQ+ related instances that form an essential component of Indian literature and history.
Regardless of historical precedence, the current situation demands robust attempts to not only do away with Section 377 but also to strive towards integrating the LGBTQ+ community into the society. It is interesting to note that England has decriminalized homosexuality, but we seem to follow their colonial legacy till now.
Sadly all the three pillars of Indian democracy- executive, legislature and judiciary- are passing the buck to each other over this important issue. The Supreme Court has been at the forefront in fixing other grave social issues, and has the power to take action. The court can take suo motu cognizance but has left the legislature to decide the fate of LGBTQ+ community in the country. No political party wants to get into the controversy surrounding this issue which is still considered taboo in India, fearing a backlash. All this has led to a state of inaction, and people from this community remain the worst sufferers.
The solution, therefore, should be inclusive and must involve all the stakeholders, most importantly, representatives from the LGBTQ+ community. The need of the hour is to be sensitive towards the needs of this community. Ideas must not be forced upon in a democracy; and individuals should have the right to choose their partners. The Supreme Court has interpreted Right to Privacy as an integral part of Article 21(Right to Life and Liberty) and unarguably, Section 377 of the IPC is in clear contravention to the privacy of an individual.
In a welcome step, in February this year, the Supreme Court finally agreed to reconsider the constitutionality of Section 377 in response to the fervent pleas of petitioners, reinstating temporary relief to the queer community and its followers. The case has been referred to a five judge Constitution bench. One hopes for a judgement by the court which will ultimately guide the law-makers for a comprehensive overhaul of the status of homosexuality in India. The true test for any democracy is how the minorities are treated by the majority, and India is no exception to this rule.