Supreme Khaap and the Section 377: it’s about basic human rights

Shambhavi Saxena

Shambhavi

A wildlife enthusiast, student of Literature at Lady Shri Ram College for Women, unabashedly fat, queer and opinionated. Shambhavi can be contacted at twitter on @shamwoo

I remember when the Delhi High Court turned down section 377 of the Indian Penal Code on its head in 2009. I was sixteen and still cautiously trying to figure out where I belonged in the colourful spectrum that is human identity and that court verdict was as a beacon of hope to anyone who understood and appreciated that spectrum of human identity. The Delhi Queer Pride Parades in the following years boosted queer visibility. They were big and inclusive with people from all walks of life, supportive families and some even brought their pets along, unconditionally loving no matter what your orientation! Coming out of the closet didn’t seem so daunting and being open about one’s sexuality was met with more acceptance than hostility. There emerged, slowly, an understanding that queer people are still people and ought to be treated as such. But there were always nagging voices saying homosexuality was a disease, going as far as advocating rape as a ‘corrective measure’ against non-heterosexuals. These voices burst forth on 11th December, 2013, when the Supreme Court of India re-criminalized homosexuality by staying the absurdity that is Section 377 of the IPC. Saumya and Akanksha (names changed) who are in a same-sex relationship were devastated at the news. Akanksha says, “Since the High Court order, we were in a happy bubble. I didn’t have very high hopes about the Supreme Court judgment, but I didn’t expect such a regressive step. We may have the luxury to hide and be in denial, but despite that protection, it made me feel horrible.” Saumya added, “I could be jailed for being who I am. Having your rights snatched away from you is unsettling!”

Section 377 classifies gay people and gay sex as ‘unnatural’ in an utterly infuriating way that is unacceptable in ‘modern’ India. Interpreted, the Section, in effect, criminalizes any penile non-vaginal sexual act not aimed at conception. This means that recreational sex between a consenting man and woman, too, is illegal, as it is not procreative. This means not only is gay sex (including anal and oral sex) illegal, but so is the use of birth control and contraception. Even more bewildering is that Section 377 makes no mention of consent. If this sounds wildly backward to you, you’re right, it is, and it’s no wonder since the Section is colonial residue – a law from the time of the British Empire. More times than I care to count, the argument is made that homosexuality is caused by western influences. Panchali (name changed) who identifies as bisexual, said, “Homosexuality has not come from outside India. You know what’s come from outside India? The law!” Funnily enough, England decriminalized homosexuality in 1967, and legalized same-sex marriage in July, 2013. Despite its claims to be catching up with developed nations like England, India’s social situation continues to languish in the middle ages, exemplified by the homophobic comments made recently by B. P. Singhal and by Baba Ramdev. These comments were met with much anguish from the community. Panchali finds the ruling “Incredibly backward, considering the trend internationally,” and responds to these comments, saying “Gay people don’t exist in a vaccuum! They contribute to society! It is unconstitutional to take away people’s rights.”

As for homosexuality being unnatural, as religious groups maintain, Akanksha says, “There is no rational sense or bases for the argument. It is a twisted sense of morality. They make these statements sitting comfortably on a high moral pedestal.”

Panchali argues, “Building civilizations is pretty unnatural, I haven’t seen any other species doing that. Also many mammals are known to engage in homosexual acts. It is quite natural. And religious sentiments? They may only be hurt, but I could be dead.” This statement rings true for many, as the law could spark violent hate crimes across the nation. Panchali, Saumya and Akanksha all state concerns about Baba Ramdev’s large following, who would unthinkingly align themselves with an ill ideology such as his.

I want to stress the fact that the Supreme Court’s ruling, and the cruel (and frankly, unreasonable) responses of persons pro-Section 377 which followed, is not an issue restricted to a single community of people with an alternate sexual lifestyle, but a very grave human rights issue. It is a human rights issue because the state takes away the individual’s right of choice and right to their own body. The fight for bodily autonomy and integrity is a constant struggle for me as a woman, and as a queer woman, even more so. No court, no government should be allowed to dictate the private sexual affairs of consenting adults, it goes directly against our constitutional rights. This sort of invasive and controlling law reeks of the patronizing, shaming and tyrannical culture that India would do well to shed. It is a culture of fear and oppression that has borne evils like caste-discrimination, child-marriage and sati. It is a culture that has little to do with values of love and compassion, but more to do with power and subjugation. It is a culture that promotes the interests of a few, while maligning the many and it is a culture that queer people like myself cannot ally with. And that is why we gathered in large numbers on a cold winter evening in Delhi, standing in solidarity with each other no matter what we identified as. We gathered in large numbers at Jantar Mantar on 11th December, clapping and singing and waving our flags in the air because we would not be treated like second class citizens.

Saumya remains hopeful, “Minorities always have their own struggle and eventually we will succeed. Imagine if any oppressed community gave up? Even if the law disagrees with our lifestyle, the people of India are progressive human beings. People will eventually have to open their eyes.”

Akanksha suggests an organized approach, “Our rage needs to be channelled and fit into the legal recourse. We need volunteers from a legal background to breakdown the judgment to the layman, to know what we’re in for. We need to understand the power the State has over us.”

Following the horrific rape of a young woman on December 16, 2012, open debate about sex and sexuality was a move towards progress. It threw open the issue of sex and bodily autonomy in general, to which Section 377 is directly linked. The Supreme Court’s late Justice Verma played a pivotal role in strengthening the anti-rape laws earlier this year, but the Justice Verma Committee’s progressive stance on other forms of sexual abuse were ignored. How are we a progressive nation when our laws simultaneous ban gay sex and stay mum about marital rape and atrocities committed in the name of AFSPA in conflict territories? It is a matter of national shame that we should call ourselves a democracy and a fast-growing world power when we cannot keep the State from meddling in the private affairs of consenting adults.

Essentially, a ruling of this sort is like a free ticket to those persons who would indulge in heinous crimes against the LGBTQIA. I’m talking about stalking, harassment, sexual assault, brutality and even murder of any person suspected to be gay or lesbian. I’m talking about the open brutalizing of India’s hijra community, who have historically had a significant place in India’s society and culture. In fact, in Karnataka, Section 36A, another such archaic provision, is misused to make life hell for Hijras. The verdict is treading dangerous territory because it violates the rights of a large part of the population, and this is a cause for concern for all of us. As Nelson Mandela once said, “For to be free is not merely to cast off one’s chains, but to live in a way that respects and enhances the freedom of others.”

The Delhi High Court verdict in 2009 signalled changing times and was the fruit of a long drawn fight, and while December 11th was a day of disappointment, I believe I speak on behalf of the entire community when I say that we would rather fight on, and we will, instead of allowing anyone to make us feel vulnerable or unsafe or less than human.