Danish Sheikh, a Delhi-based author and queer right lawyer, tweeted recalling how six years ago, when the hearings in the Suresh Kumar Koushal vs. Naz Foundation case began, he came out about his sexuality to his parents. He remembered how they didn’t understand him then, and took him to a psychiatrist who diagnosed him of a mental illness in the form of homosexuality that could be cured with ‘aggressive treatment’. Heartbroken, Danish moved out of his parents’ house. While his mother made gentle efforts to reach out to him, his father remained silent.
But something wonderful happened last Tuesday. Danish’s father called him and in a shaking voice asked if he’d like his parents to come to the court to support him. Things can change. And it is with this hope that people from the LGBTQ community stand united against a society that labels them abnormal, a society that only pretends to respect them, a society that fails to understand them.
A lot of push-and-pull has happened in regard to Section 377 of the Indian Penal Code which states, ‘Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.’ The explanation makes it clear that ‘Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.’
To put it in a nutshell, the section was dismissed in 2009, but reinstated in 2013. Starting again from square one in 2016, after a prolonged passing-the-responsibility game between the judiciary and the Parliament, a five-member constitutional bench of the Supreme Court was appointed to hear the pleas challenging the constitutionality of Section 377 earlier this month.
But the fight is different now because of the Puttuswamy judgement from August 2017, which defines the Right to Privacy as a fundamental right under the Constitution of India. It brings up the issue of consensual sexual acts in private, which points to reconsidering the status of Section 377. The bench has concluded, but the Supreme Court has reserved the verdict as of now.
The type of public opinion flooding social media ranges from ridiculous to reasonable, but it is time to set everything aside and listen to the people who are liable under this law, and what implications the verdict will have on their lives.
Those who are arguing for upholding the validity of Section 377 say that if gay sex is legalised, there would be rise in cases of HIV, it would lead to the ‘corruption’ of the young generation and would jeopardise the sanctity of traditional marriage between man and woman.
Putting forth his point, Shackya Nanda, who owns House of Bumble salon in Pune, says, “As far as the issues of public health and the rise of HIV is concerned, this verdict will most probably have a positive effect. The mostly marginalised LGBTQ community will get the courage to come forward to discuss the issues pertaining to their health. Till now, due to the fear of prosecution, they would largely remain off the radar, and so would their issues regarding HIV and other diseases. Once the fear of prosecution is gone, we are more likely to seek help and get counselling on safer sexual practices, which will result in larger benefits for overall public health.”
Nalin Gupta, a programme analyst at an IT company in Bengaluru, gives you a picture of what it’s like to deal with medical issues if you’re a gay in this country. He reasons that if people really think legalising gay sex will be detrimental to public health, they should spread awareness about STDs, HIV and healthy sexual practices rather than treat it as taboo. “Let people know how can sexually transmitted diseases be detected and treated. The country is in such a state that getting an HIV test done is such a pain. Finding a doctor who is willing to prescribe tests like pre-exposure prophylaxis (PrEP) and post-exposure prophylaxis (PEP) is next to impossible!,” he says, adding, “Countries like America and Canada with recognised LGBT+ rights don’t seem to be crying about HIV. The answer isn’t criminalisation, it’s awareness and accessible heathcare.”
Drag Queen, writer, educator and TEDx speaker Rovin Sharma aka Roveena Tampon, shares how the lack of proper sex education leads to these misconceptions — what is natural and what is unnatural. “If you have proper sex education in schools and colleges, people will know how to use appropriate protection and save themselves from being susceptible to STDs. Who says that only gay sex spreads HIV? There is much confusion because people are unaware of the facts,” says Sharma, adding that the paranoia related to gay sex will reduce with proper sex education.
Some people believe that India is not ‘as advanced’ to accept the LGBTQ community, but more progressive thinkers refute this concept saying that India will only be able to be an advanced country, if it acknowledges these acceptances and looks towards the future instead of being held back by the archaic laws.
The hesitation among the public is caused by lobbyists who make statements implying that homosexuality is against Indian culture, or that it is a mental illness that can be cured, among other ridiculous claims based on morality.
Nanda believes that morality is subjective. He also believes that two consenting adults indulging in physical intimacy has nothing to do with the law. Consent is the only condition that should matter when it comes to what adults are doing in their bedrooms. “What’s moral to me might not be to you and vice versa. As long as it happens between consenting adults in private, I believe it does not qualify to be a criminal act. Being gay is one’s sexual orientation, not a choice to be a criminal. Something that happens within the confines of the four walls of my bedroom is none of anyone’s business — not the general public’s, not the Parliament’s and not the court’s. Prosecuting consenting adults is so regressive, it takes India back by over a century,” says Nanda.
As a matter of fact, the formation of Section 377 dates back to1861. It was introduced during the British rule of India, and modelled on the Buggery Act of 1533. However, same-sex marriage was legalised in England in 2014, and in ILGA-Europe’s (the European region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association) 2015 review of LGBTI rights, the UK received the highest score in Europe, with 86 per cent progress towards ‘respect of human rights and full equality’ for LGBTQ community.
But leaving the ‘developed nation = recognised LGBT rights’ equation aside, Gupta believes that a developed nation should not only be economically sound, but also make sure that all its citizens can safely place their trust in the constitution, the government and the court, and the trio would work keeping the welfare and progress of the citizens in mind.
“How can I call India a developed nation when people can be prosecuted for having consensual sex with another adult? No murder, no rape, and yet they would be a criminal in the eyes of law?” he rhetorically asks.
Sharma points to the erotic sculptures of Khajuraho, which include the depiction of gay sex, to claim how advanced India was back then. “India was the land where the Kama Sutra was born. It taught the world how to have fun with sex. It regarded sex as a spiritual act. If you come back to me and say ‘India is not that advanced...’ all I will say is ‘you’re a hypocrite’. We need to settle these double standards,” says he.
A verdict of the Supreme Court will significantly affect the stigma attached to the LGBTQ community. If the verdict is against upholding Section 377, it will bring a change in the mindset of the general public, and this will have a trickle-down effect where the general attitude towards this marginal community will be more accommodating and tolerant.
“I have been out and proud since last 12 years, even when we were branded criminals according to Section 377. A positive verdict will definitely mean that those who are still in closet regarding their sexuality would get more courage to face the world and won’t have to hide their identity,” says Nanda, adding, “I believe that the change will happen on a personal level. As our mentality starts changing about the way we look at other sexual orientations, future generations will evolve to be an inclusive society. They will grow up thinking that some people choose to live with the opposite sex and some people with the same sex. It’s just a matter of choice and preference. It doesn’t make someone more normal than the other. It all builds up to create an inclusive atmosphere where everyone feels welcome and not threatened. We all coexist together.”
Gupta agrees. He recalls, “When I came out to my family, my mother was confused as to how could being gay be correct if the law of the country criminalises it. So yes, decriminalisation would help in the removal of the social stigma. It will take time, but taking such baby steps is the way to move ahead.”
Sharma believes that the rejection of Section 377 will result in the reduction of crimes against people from the LGBTQ community. “I have come across so many people who have told me that they have been harassed because they are gay. Some of them have been raped, but they couldn’t go and complain to the authorities because they feared being prosecuted under Section 377. If this is scrapped, people of the LGBTQ community will feel safer, and will be encouraged to come out and report crimes against them,” says he.
Another point that Sharma brings up is the hesitation to accept your sexual orientation due to the stigma attached to it. “People will be confident to come out of the closet if this verdict decriminalises gay sex. If it is accepted by the law (by the constitution), the conversation of LGBTQ rights will gain momentum. The verdict, if in our favour, will be life-changing,” he says.