Millennium Post

Resisting fear in unequal India

Today marks one year of the restoration of Section 377 of Indian Penal Code, 1860 in its full glory and effect, which was upheld by the Supreme Court on 11th December, 2013. No reinstatement of any law in the history of Indian jurisprudence has been met with so much of shock, fear and horror.

As is well-known, Section 377 is a colonial era law that criminalises all penile-non vaginal sexual acts in the garb of prohibiting ‘unnatural offences’. Be it noted that though it applies to both heterosexual and homosexual persons, only homosexual men and transgender persons are targeted.

The Delhi High Court decision in 2009 that decriminalized adult consensual sexual acts in private had opened up an era of freedom and dignity for LGBTI persons, while the judgment of the Supreme Court in Koushal [2014(1) SCC 1] in upholding the law has brought back the period of fear and distrust amongst the LGBTI community in India. From harassment to freedom to fear, the journey of Section 377 appears to have come a full circle.

In a spate of cases from various cities in the past one year, including Mumbai and Bangalore, it appears that Section 377 has become a potent weapon for anybody who wants to get back at a person who identifies as gay or is perceived to be so. There exists several reported cases where Section 377 has been invoked in the last one year, with the latest one being the case from Bangalore, where a wife filed a complaint of cheating and unnatural sex against her husband, who was having consensual sex with other men. Issues pertaining to marital disputes or souring of relationships or refusal to submit to blackmail have all become subject matter of criminal sanction under Section 377. In none of these cases, it pertained to non-consensual sex or sex involving minors. In fact, what is clear is an organised pattern of blackmail and extortion of gay men in cities, by contacting them on social networking sites and then subjecting them to blackmail and threats of disclosure.

At the same time, incidents of violence against transgender persons are rising daily, with the latest case of a transgender person, associated with a HIV prevention program, being tortured by the police in Guntur, Andhra Pradesh, resulting in her committing suicide in October, 2014. The only glimmer of hope has been the landmark decision of the Supreme Court in National Legal Services Authority v. Union of India [2014 (5) SCC 438], which granted legal recognition to self-identified gender of persons, whether as male/female/third gender, without requiring medical certificate. However, implementation of the decision is slow and requires constant monitoring. Besides, the Government of India has filed an application in the Supreme Court seeking clarification on the judgment on legal grounds.    

Fear has become endemic in the lives of LGBTI persons in India. One never knows when one will be beaten up, subject to extortion or become victim of verbal abuse and snigger. Always being afraid and fearful is denying them the opportunity to live their lives fully and being who they are. And in this process, trust is the casualty, whether in family, friends or partners.

This was precisely what was argued by the LGBTI groups in the Supreme Court, which was rejected by the Court. While restoring Section 377, the Supreme Court famously stated that Section 377 was about ‘acts’ and not about ‘identity’. Noting that most cases under Section 377 pertained to non-consensual sex, the Apex Court expressed an apprehension whether the law would be used in cases of consensual sexual conduct. This was a complete fallacy, since the Court neither appreciated the nexus between ‘fear of criminalisation’ and ‘lack of prosecution’ nor did it examine the real nature of Section 377 on the daily lives of gay men and transgender persons. The instances of the last one year clearly show that Section 377 is no longer a dead law for homosexual adults or transgender persons; it has become alive and kicking, thanks to a categorical endorsement by the highest court of the country.

Effect on Self-Expression
The insidious effect of Section 377 is also evident from its impact on the freedom of speech and expression, a constitutionally cherished right under Article 19(1)(g) of the Constitution. Recently, Aamir Khan on his show ‘Satyamev Jayate’ appealed to the people of India not to discriminate against LGBTI persons, while calling for repeal of Section 377. On this account, a city civil court in Chandigarh has sent a notice to the actor on a petition by a local advocate that the actor has allegedly committed ‘contempt of court’, due to his open advocacy against Section 377. In another incredulous instance, the Government of Gujarat denied tax exemption to a Gujarati film on ‘homosexuality’ (‘Meghdhanushya’) in 2013.

Though the High Court of Gujarat struck down the government’s decision, the Gujarat Government appealed to the Supreme Court on ground of reinstatement of Section 377, and got a stay on that High Court’s order. The case is presently pending in the Supreme Court. These cases again illustrate the fact that mere existence of Section 377 is sufficient to gag an individual’s right to self expression, and creates a climate of fear and panic that has a chilling effect on public debates on alternate sexuality.     

One year on..
Despite the setback in the Court, the battle for equal rights is continuing, with even greater resolve. As thousands of LGBTI persons marched along with their families and friends in Pride marches in different cities in November last month, the specter of recriminalisation is fought daily and how. The steely resolve of the community to refuse to go back to the closet, as is summed up in the iconic mantra of ‘No Going Back’, as well as the outpouring of public support in response to recriminalization has been reassuring.

The curative petitions are currently pending in the Supreme Court. It is hoped that the Court would dispel this atmosphere of fear by from its own decision and fulfill its constitutional duty of protecting the freedoms and liberties of all individuals. The ball is equally in the Government’s court. If it is so keen to clean up the justice-delivery system in India by deleting obsolete laws, then Section 377 should be the first to be repealed, being a colonial imposition as well as serving no purpose, in light of new special laws like Protection of Children against Sexual Offences Act, 2012 or the Criminal Law Amendment Act, 2013. We do need Swachh India but we need swadheen India even more.

The author is Senior Advocate, Supreme Court and Director, Lawyers Collective
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