In the recent times, as a society, we have come to view our Indian Culture & Heritage through a heteronormative lens. Often one notices how people from alternative spectrums of sexual orientation and behavior are looked upon as anomalies of nature – like the Hijra on the train or the boy with feminine mannerisms or even a woman in ‘men’s clothing’ sporting a boy cut.
The interesting part is that we always use the conceptual idea of “natural” vs. “unnatural” (synonymously used with ideas of “normal” vs. “abnormal”) to outcast all that is non-heteronormative. However, the right discussion to be had is who decides what is “natural” and “unnatural”? As a civilization, we always turn to biology to justify what ought to be or not. Yet we fail to understand that things like sexuality and gender identities are not determined by a single gene.
Epigenetics, simply put, is the study of how the environment speaks to your DNA. A range of genetic blueprints that have been influenced by conversations with the environment over a period of centuries goes into forming the above. Your environment has the potential to change the way in which your DNA is expressed and not the DNA itself. For those who cannot resist resorting to the nature vs. nurture debate in deciding the legitimacy of a community’s existence, it is like asking whether cake is made out of milk or flour. These concepts, which are really just a colonial legacy, are pulled by dogmatic self-proclaimed guardians of the Indian culture to justify stereotype. The LGBT Community has found itself at the receiving end of this ideology historically, socially and legally.
Section 377 of the Indian Penal Code criminalizes sexual activities that are “against the order of nature”, even when consensual. The unnatural acts refer to same-sex intercourse, bestiality and fellatio. This law was exported into India by our English colonizers in 1860. That we, as a State, chose to hold on to this reflection of Victorian morality even after Britain abolished it in 1967, is ironic. That we, as a Society, choose to consider its abolition or amendment a threat to our cultural values in India, is befuddling because what our Indian culture stands for or consists of, no one knows. For if one were to literally walk the line drawn by this law, sex post menopause and sex with the use of contraception count as “unnatural” as well.
In a study conducted among promiscuous and monogamous rat species, it was found that the monogamous rat species were more aggressive since they were constantly invested in protecting their own behavioral frameworks. Reflecting upon the trajectory of the Naz Foundation vs. Govt. of NCT of Delhi Case, it looks like this tendency can be applied to the human species, which is wired to protect certain frameworks as well.
In 2009, the State lost the case to Naz Foundation when the Delhi High Court read down Section 377 and declared it unconstitutional with respect to same-sex intercourse between consenting adults. Furthermore in 2012, the apex court ruled favorably in the path-breaking NALSA judgment (National Legal Services Authority v. Union of India), affirming the constitutional rights and freedoms of transgender persons (including those who identity as the third gender and transsexuals). So when religious leaders of certain kinds, who claimed that the judgment affected their religious understanding of the Indian Culture, appealed to the Supreme Court in Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors., the result was a frustrating judgment in 2013 that upheld Section 377, criminalizing consensual same-sex intercourse yet again. The Indian Judiciary’s contradictory approach to matters concerning the Queer Community is worth noting here.
The legal battle over Section 377 started out as a concentrated effort of sexual minorities to gain access to sexual healthcare,and has now evolved into a fight for their Fundamental Rights. Section 377 discriminates against people on the basis of their sexual orientation. It does not criminalize one’s sexual orientation per se, but the act of behaving in accordance with that orientation. This effectively translates to more of a stigma against the LGBT community and this is a violation of the fundamental right against discrimination as per Article 15 of the Indian Constitution.
It also violates the right to equality in the eyes of law as stated in Article 14. Article 22, that gives all citizens the right to life, is also violated by Section 377. Over the last 40 years in a series of judgments, the Indian Judiciary has interpreted the right to life to further include the right to privacy. This makes what takes place consensually in a bedroom between two people no one’s business. But one cannot tell if someone is, say homosexual, by merely looking at them. This must be established by catching someone in the act in a bedroom and let us note that not all people have access to private spaces like bedrooms. Many a times, people or victims as one can call them, are mostly presumed to be members of the LGBT community – if someone is different, if someone has mannerisms of the opposite sex, if they frequent places like brothels for sexual services. Herein lays the danger of getting caught and those who access public spaces for intercourse are most vulnerable. The law is then used to victimize them, for purposes other than conviction. In the past, it has been used for extortion and blackmail, leaving victims heavily stigmatized in the process. For those who disagree, one look at the percentage of convictions will make you rethink your position.
The Supreme Court in its verdict stated that India’s Parliament could review the act. It is known that the Supreme Court and the High Court have the power to strike down legislations (both pre- and post-Independence) if found to be unconstitutional. The Indian judiciary has done away with a number of age-old, draconian and dysfunctional laws for such reasons in the past, then why the silence over Section 377?
Morality like philosophy is a shifting system – an amalgamation of attitudes and views that are culturally diversified – something aptly stated and recognized by the Delhi High Court. In the Supreme Court judgment, Justice Singhvi and his panel did not engage with this question of Indian morality raised by the petitioners. Despite their approach, by reaching out to the voice that gave this debate an angle of moral policing, the Supreme Court only upheld it.
In scrupulously analyzing the constitutionality of this judgment, some commentators have located the debate over 377 in questions of sexuality, free speech and censorship issues. Article 19 (1)(A) and (1)(D) that deal with the freedom of expression, figured in detail as part of plead in the initial petitions of the case. However, both the High Court and Supreme Court chose not to look at this aspect. There have been numerous instances of violation of the freedom of expression in the media with art being vandalized, film screenings being banned, writers being arrested for sedition and what not. A number of people from literature, film and art backgrounds have been on the free speech radar across the country for producing work that sheds light on sexual minorities. These instances have been a constant reality much before the notion of ‘blasphemy’ even came into our legal understanding, with Section 66(A) of the Information Technology Act in 2008.
The clamping down of expressions and choices brings us to a larger concern that is a reflection of present day times. Can the State dictate the nature of our sexual relationships and expression? When two consenting adults have sex, who is the crime committed against in society to make it a crime? This makes the question of offense really important, thereby making the question of censorship critical. I feel the need of the hour is to cultivate and follow a constitutional morality instead of giving into to pressures of public or popular morality. After all, India is a democracy and as Salman Rushdie rightly said, “Democracy isn’t a tea party where everyone says nice things about each other. In a democracy, people argue vehemently with each other – they just don’t shoot.”
Over the last few decades, the LGBT Community has mustered support from Civil Societyand the world over, in standing up for their rights, protection &freedom. Earlier this year, the world’s first national voter referendum on same-sex marriage drew broad approval when Ireland joined 18 other nations in allowing two people to marry, “without distinction as to their sex”. Despite over 70 percent of the population being Roman Catholic, the people of Ireland voted in favor of same-sex marriage which goes to show that tolerance is an achievable mark for a progressive society.
In India, the Parliament has furbished the Queer movement with a milestone in breaking the binary gender construct of ‘man’ and ‘woman’ that has pervaded our Society. The parliamentary option of revisiting the judgment proved successful when the “Rights of Transgender Persons Bill 2014” was unanimously passed by the Rajya Sabha. This Bill provides remedies against abuse and violence faced by Transgenders by way of employment opportunities, vocational training, rehabilitation and social security.
As India shines bright, we ask what’s next for the queer population here. In a country where the Constitution affords special protection to minorities, they have been very vocal in claiming their rightful space in society. In abandoning them through this struggle, we would set them against an uncertain future that will be lined with a series of heartbreaks, violations, exploitations and repression, as history has had it.
However, the road that does not retrace history is one of tolerance, understanding, compassion, acceptance and above all, the way of humanity. This is the way forward.