SC's stand on section 377 is a ray of hope for sexual and gender minorities

Archana Dalmia
Archana DalmiaJul 14, 2018 | 11:49

SC's stand on section 377 is a ray of hope for sexual and gender minorities

July is a rainbow month. It not just makes us recall the Delhi HC judgment of July 2, 2009, decriminalising the LGBTIQA (Lesbian, Gay, Bisexual, Transgender, Inter-sex, Queer and Asexual) community, but also the month is now witnessing the case being heard in the Supreme Court. Yes, justice is slow, but as the bench of legislatures indicates, it is sure.

While it is heartening that the Supreme Court has decided to take a stand on the issue that has been in limbo, it pains to hear the kind of arguments that are being made against the abolishment of Section 377 of the IPC, enacted in 1860. For those not in the know, Section 377, enforced by Lord Macaulay of the British Raj, criminalises sex between consenting adults of the same sex or those whose gender is non-normative.


Section 377

There were comments like those by Manoj George of the Apostolic Alliance of Churches, “The majority of India does not want to decriminalise 377.” Then, of course, one heard the oft-repeated saying, “It is against the law of nature”, to which Justice Indu Malhotra (the lone woman judge on the Constitution Bench of the Supreme Court hearing the fight against Section 377 of the IPC) pointed out, “There are hundreds of species in the animal world which indulge in same sex intercourse.” But the one which took the bakery was the comment that compared what two adults do in the privacy of their bedroom to bestiality!

The difference between bestiality and consensual sex needs to be spelt out: while humans can give consent, animals cannot and that in itself rules out any association between the two acts. Anyway, cases of inter-species copulation (and surprisingly there are many incidents of men trying to have sex with animals) need a separate law to address the issue as does child molestation that is non-penetrative.

The colonisers clubbed all these together under Section 377 and we have not bothered to change it, even though the UK has gone many steps ahead and made gay marriage legal. The British PM hailed it as a step that will make all people equal, whether "gay or straight."


In a democracy, everyone has a right to equal opportunity and respectable life. That is the vision of an equitable society that forms government through ballot. Unfortunately, the current vision of this community is coloured by prejudice. From suicides in Chennai to a doctor being extorted by young boys posing as same sex lovers in Bengaluru, to an effeminate boy being flogged in Delhi, intolerance towards the LGBTIQA community often takes a violent hue.

Also, I have often wondered why "hijras" are so pushy and loud — whether while begging or dancing and singing at celebrations. Their loudness masks their vulnerability — they are forced to be aggressive to counter the lewd jokes, prejudices and violence unleashed on them.


Regressive stand

Unfortunately, majoritarian politics have labelled the LGBTIQA community minuscule and continue to ignore its rights and liberties. Regressive statements abound from politicians and gurus. Only a few young leaders are willing to address the grievances of the LGBT community.

The RSS’s stand on the matter is well known. Its leaders have gone on to defend the law which criminalises LGBTIQA people. In this scenario, however, there is a ray of light when BJP leader and former RSS spokesperson Ram Madhav says that criminalisation of gays is debatable. This shows that even the most rigid elements need to take cognisance of direction in which the world is moving.


Way forward

In Australia, Norrie, an androgynous person, won the right to be recognised as neither "male" nor "female." A couple of weeks later, the Supreme Court recognised transgenders as a constitutional category. This will change the forms that have categories only for male and female.The world is getting sensitive to minority rights, however small the minority may be. And this is what it is to be human — to respect each other, not discriminate on the basis of gender, orientation, or any divisive ideology.

Today youngsters at parties may be open about being gay or lesbian, but sniggering and whispering still happen. Truth be told, I feel a little uncomfortable at public display, owing to my prejudices, but I understand that one must respect everyone’s right to freedom of expression.

I believe that if any relationship between two adults is consensual, it should be nobody’s business. It is heartening to see people from the LGBTIQA community still protesting for their rights. So is to witness art exhibitions like ME We at the American Center in Delhi and the S&S Trunk Show at the Lalit #TAKEPRIDE. After all, we do not want to join ranks with Afghanistan or Saudi Arabia in this matter, do we?

(Courtesy of Mail Today)

Last updated: July 14, 2018 | 11:49
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