Imagine waking up every day with a secret that you can tell almost no one about, for fear of being ousted and being labelled an outcast by family, friends, and society. This secret is a natural, intrinsic part of you, but you must carry on with daily life as if that version of you does not exist. Cloaking this part of you from the ones you love and trust the most, ironically, for loving someone that doesn’t conform to society’s rigid construct of relationships that must exist between men and women only. This dilemma is what a large part of today's LGBTQ+ community, in India and around the world, face every single day of their lives.
“History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries,” wrote Justice Indu Malhotra. These were her words in her judgment as the Supreme Court, in a landmark decision on September 6, 2018, unanimously struck down part of Section 377 of the Indian Penal Code (IPC) which criminalised gay sex, saying that it violated the constitutional right to equality and dignity.
It has been nearly three years since then and one is left to wonder whether these rights include the freedom of marriage, adoption, freedom from workplace discrimination and many more. For true equality to prevail, those rights must be explicitly and fully extended to all people, regardless of their sexual orientation.
The infamous Section 377
Section 377 of the IPC which criminalised all kinds of non-procreative sexual intercourse was enacted in the pre-independence era by the British colonial Government. This archaic law was not only directed against homosexuals but also covered all other forms of non-traditional sexual intercourse including, the case of heterosexual union.
After more than 70 years and almost 2 decades of a long and strenuous legal battle, this Section of the IPC was struck down and rightfully so. This age-old law had become a handy weapon that law enforcement could use with impunity to harass and exploit all those queer individuals who did not conform to society’s traditional binary of sexuality and gender.
The decriminalization of section 377 was the first step towards meaningful progress towards LGBTQ+ rights in India. However, this monumental judgement should not mean that the fight for equality is over, in fact, this is just the beginning of a new era of human rights in India. The repealing of Section 377 was merely the tip of the iceberg and the LGBTQ+ community in India has a much larger and greater struggle for equality ahead of them.
Despite the reading down of section 377, the laws in India remain hostile and prejudiced towards the LGBT community in several ways. The primary reason behind this is that there exists an enormous gap between the legislative and the judicial development of LGBT laws in India. So, though the Supreme Court of India through the landmark judgements of National Legal Services Authority v. Union of India, Navtej Singh Johar v. UOI, and Justice K.S.Puttaswamy v. Union of India (Puttaswamy) has laid the groundwork to confer upon the queer and non-binary community a bundle of basic human rights, the legislature has failed miserably to keep up with the recent developments.
In summary, same-sex couples are legally allowed to cohabit and engage in consensual sex without any fear of being incriminated, but face discrimination and persecution in other sectors of life and are denied the equality of treatment afforded to heterosexual couples such as same-sex marriage, inheritance, adoption rights, surrogacy, etc. LGBTQ+ people are taxpaying, law-abiding citizens of this country too, and they have every right to the same privileges that society takes for granted.
The Post-377 Era
India as a nation is deeply rooted in its myriad traditions and a very devout and religious nation in general. Individuals who identify as LGBTQ+ find gaining acceptance from a conservative society extremely difficult. Even in more progressive, urban areas, a majority of individuals are brought up in middle-class families where even the discussion of homosexuality as a topic is taboo, let alone coming out to parents and families. Though the verdict did declassify LGBTQ+ individuals as criminals, the mindset of most of society remains the same towards the LGBTQ+ community.
Things have changed post-377, LGBTQ+ people are now more confident to express themselves, grow personally, and be happy in their relationships without the fear of discrimination and harassment. However, this change has primarily been for the privileged few. Also, the lives of transgender people have not improved much. The ‘T’ in LGBTQ+ continues to be the most marginalized of the marginalized. While the significance of this ruling to decriminalise homosexuality cannot be reduced, the process of social inclusion and acceptance now assumes even greater importance in the post-377 era.
The most remarkable part of the Supreme Court's decision is that it did not just use a universal standard of human rights to decriminalize homosexuality; it also acknowledged the responsibility of the state to help end the stigma attached to being LGBTQ+.
The judgement also acknowledged the State’s responsibility to help end the centuries of the stigma attached to the LGBTQ+ community. The Court could have gone even further and emphasized that the Indian Government should necessarily put in place mechanisms that would allow the reconciliation of shunned LGBT children and their parents. Doing so would help end the practice of parents forcing arranged marriages on those children—something that can lead to trauma and other serious mental health problems. It would also help end the horrendous practice of “corrective rape,” in which families subject their LGBT children to non-consensual sex to attempt to change their sexual orientation.[2]
Efforts towards reconciliation between LGBTQ+ Indians and their various religious communities is a focal point that must also be addressed. This is because following the Court’s decision, many conservative Christian, Muslim, and Hindu leaders, who are often actively antagonistic towards each other, joined forces and blasted the ruling as shameful and promised to contest it. Educating these groups about sexuality, sexual orientation, and gender identity and how it is not something you can choose will go a long way in changing traditionalist attitudes against the LGBTQ+ community.
The Need for Anti-discrimination Laws
India does not have a comprehensive anti-discrimination code. While the Constitution of India prohibits discrimination, that injunction only applies to the government and its instrumentalities. The private sector thus has free license to discriminate with impunity in matters of employment, housing, health, and education, among other areas. While there have been discussions about the necessity for an anti-discrimination ordinance, there appears to be very little political consensus towards the enactment of such a law. Even the courts have turned a blind eye to this problem which affects the everyday lives of the queer community.[3]
LGBT workplace survey of 2016 showed that more than 40% of LGBT people in India have faced harassment at their workplace because of their gender/sexual identity. Many LGBT people often have to hide their sexual identities because of the fear of potential discrimination or losing their jobs. Therefore, access to employment and discrimination at the workplace continues to pose a significant challenge for the LGBTQIA+ community. [4]
Wings of Change
Recently, the central government sought to dismiss petitions seeking to legalize same-sex marriage citing that same-sex marriage was “against the Indian ethos” and attacks the ‘sanctity’ of marriage in the Delhi High Court. It is also “against India’s ethos” and our sacred Constitution to discriminate or treat someone unfairly or unjustly just because of who they are.
There was a time when marginalized sections were looked at as individuals needing support, but often that paints a frail image of them, which is not the case anymore. The LGBTQ+ community is not weak, they have been at a severe disadvantage from being unable to access opportunities due to their perceived standing in the societal ecosystem, bias - conscious and unconscious - has led to them being far away from progress. [5]
But, now with the wheels of change in motion, what is needed is more representation, visibility, and acceptance for all the segments under the colourful umbrella of diversity and inclusion, through not just words but actual and effective action and reforms.
The questions we must continue to ask are when will the State begin to recognise non-heterosexual marriages? How do we address the homelessness, bullying, violence, and workplace discrimination still being faced by the members of the LGBTQ community and how can we give support to the majority of queer youth suffering from severe mental health conditions?
But as is always, there is hope. Hope for an India which empowers all its citizens regardless of their gender, sexual orientation, religion, caste or creed to fight for a more just, rightful, respectful and equitable world.
Article by-
Prithwijit Banerjee,
In-Charge Training and Development,
PES MUN Society
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