The curative petitions against the retrograde provision in the Constitution criminalizing consensual sexual acts of Lesbian, Gay, Bisexual and Transgender (LGBT) adults in private under article 377, was referred to a five judge constitution bench by the Supreme Court to have a fresh look at the issue. The struggle to remove the stigma of criminalization still continues.
Section 377 is violative of article 15 since it includes the prohibition of discrimination on the basis of sexual orientation. It is also violative and arbitrary of Article 19 by restricting freedom of speech, expression and associations by homosexual persons.
Madras High Court lawyer P.S. Kothandaraman said, “It should be struck down because it hampers not only right to life but also privacy and liberty. Liberty for choosing to be with whoever one wishes to and privacy as on one has the right to dictate terms what happens behind closed doors between consenting adults.”
The crucial factor that is often overlooked is that the law criminalizes carnal intercourse against the order of nature i.e. penile non vaginal penetration. The law is applicable to heterosexual couples, however it is homosexual couples whose sexual practices are identified by the broader society as non vaginal.
Like gay rights activist Sevakumar said, “Even heterosexual couples who indulge in unnatural sex like oral community”.
Culturally obdurate sections of society have often used this law as a stick to beat the LGBT. The queer groups are among the most marginalized of communities in India, faced with utmost forms of degradation and humiliation. They are routinely harassed by police and physically threatened or assaulted. The Hijras are often reduced to the borders of criminal extortion in the guise of demanding traditional gifts at weddings and childbirth.
The LGBT debate does not speak of the issues of this community as ‘minority issues’ but instead presents a broader spectrum or understanding of gender and sexuality that affects all citizens irrespective of our sexual orientation. Regulation of sexual behavior by the state is nothing but a gross invasion of privacy and liberty.
Sevakumar also said that, “Vishwa Hindu Parishad(VHP), Rashtriya Swayamsevak Sangh(RSS) and Bharatiya Janta Party(BJP) act as a catalyst in not striking down Section 377”.
Chennai Dost, an organization working towards the upliftment of LGBT said, “We recently encountered opposition from a religious group while doing a public event. However several religious leaders like Ravishankar Prasadhas have given their support for LGBT rights openly.”
Section 377 in today’s day and age is an archaic law that decimates the spirit of democracy and results in gross miscarriage of justice. It is the antithesis of equality and freedom, undermining the status quo by relegating minority as benighted or second class citizens. They are treated with disdain and abhorrence.
The myopic adage being homosexuality is not natural it is rather an abomination. This idea is supported by people like Rahul Easwar an author and activist and Subramanian Swamy. Rahul Easwar said, “Scientific community is yet to find a decisive conclusion regarding the very idea of orientation and genesis of gay sexuality”.
While Subramanian Swamy had previously said that, “Homosexuals are genetically handicapped”.
Vikranth Prasanna, founder of the NGO Chennai Dost said, “Few of our members lost their jobs, faced harassment and discrimination when they came out. Most of the US based corporates like Google, Infosys have a forum for LGBT employees in their firms. We are also working on inclusive HR policies for corporates; this can be achieved only if Section 377 is struck down.”
Another major NGO Sappho said, “If Section 377 is not struck down we will take it to the streets again, reach out to the public, media and educational institutions to sensitize them on LGBT rights and erase the social stigma about our people. We will continue social advocacies, sensitization and awareness raising programs. Involve more with state and legal machineries for legal entitlements.”
Striking down Section 377 is of paramount importance; for any modern nation that values of equality, respect for privacy and dignity of all, particularly to the Indian LGBT community which till now have been denied basic rights.
Their absence from public production, public decision making is denying them a chance of social interaction; emancipation is merely a proclamation and not a fact. Notion of fleeting equality is nothing but a fleeting illusion to be achieved.