A Year After Supreme Court’s Sec 377 Order, LGBT+ Community Waits for Inclusive Laws

Reading down of section 377 of the Indian Penal Code (IPC) isn’t enough to secure the rights of the Lesbian, Gay, Bisexual, and Transgender (LGBT)+ community, according to a study that has highlighted the need to repeal section 377 to prevent its misuse in cases of violence involving same sex relations.

In a landmark judgment the SC, through a reading down of section 377 of the Indian Penal Code(IPC), decriminalised same sex consensual relationships on Sept 6 last year, but for the LGBT+ community legal inclusion is still a dream.

A study by Vidhi Centre for Legal Policy has highlighted the need for victim neutrality in provisions related to sexual offences in criminal law & repeal of section 377 to prevent its misuse in cases of sexual violence involving same sex couples. The analysis also takes into account concerns of Lesbian, Gay, Bisexual, and Transgender (LGBT)+ community members who participated in the consultations organised as part of the research.

The study titled “Queering the Law: Making Indian laws Lesbian, Gay, Bisexual, and Transgender (LGBT)+ Inclusive” analyses India’s legal regime across the broad themes of identity, violence, family & employment. “The objective of this analysis is to identify laws that either continue to operate in the male-female binary or discriminate against Lesbian, Gay, Bisexual, and Transgender (LGBT)+ persons. This study aims at building on the conversation for legal inclusion,” Akshat Agarwal, from Vidhi’s research team said.

The study on “Violence” draws attention to the complexity of existing criminal laws. For instance it is pointed out that provisions of the Indian Penal Code (IPC) related to offences of sexual nature operate in the male-female binary & assume sexual acts in the same binary.

The Homosexuality debate: Rights versus morality

ddThe apex court of India set aside the Delhi High Court’s verdict, which had decriminalised gay sex among consenting adults in private in 2009, on Wednesday and left gay rights activists and LGBT community shocked and dismayed.

The Supreme Court upheld the constitutional validity of the penal provision making gay sex an offence punishable with upto life imprisonment. However, at the same time the bench of Justices GS Singhvi and S J Mukhopadhaya put the onus on Parliament to take a decision on issue, saying it was for the legislature to debate and decide on the matter.

Predictably, the gay community reacted angrily and the Twitter world was divided at the SC’s decision. Some the political community reacted cautiously, like Union Minister Kapil Sibal, who said that it was the court’s prerogative to test the constitutionality of the law, and Information and Broadcasting Minister Manish Tewari, who said that the government will look into it after studying the judgement.

Other politicians like Congress leader Mani Shankar Aiyar said that appropriate steps must be taken to ensure that those having same sex preferences are treated equally, and CPI(M) leader Brinda Karat termed the order wrong.

Then there were others like Baba Ramdev who called homosexuality an addiction and a crime.

The point is that the ruling by the SC has divided the society and the opinion makers in a major way. And it has also raised the pertinent question as to whether the time has come for the government to look into Section 377 with all the seriousness that it deserves.

To think of it, gay rights activists do have a point when they say that in a free society what two individuals do in the privacy of their home should not be a matter of concern for anyone else as long as they are not indulging in any crime. Moreover, if Section 377 is done away with, then more and more people may come out of the closet and accept their sexual preferences and not remain in denial or pain their whole life. It may also help their families to come to terms with it. One cannot deny the fact that gays and lesbians exist all around us and no law will force them to change their sexual preferences.

They also have a point when they say that the anti-gay law in the country had resulted from British colonialism. And the irony is that in July this year, Britain legalised gay marriage after Queen Elizabeth II gave her royal stamp of approval. The government too, while favouring decriminalisation of gay sex had told the court that the Indian society was much more tolerant now towards the LGBT community.

Thus, has the time come to do away with the archaic law and give people the freedom to choose the way they want to live? But at the same time one also has to look into the abuse of children and paedophilia. Some of the studies, authenticity of which can be questioned, have said that child molestation and paedophilia occur far more commonly among homosexuals than among heterosexuals on a per capita basis. However, in no way everyone from the same community can be painted with the same brush.

The government also has to look to make the laws strict and punish those belonging to the LGBT community, who use their position to exploit men and women from lower strata.

One also has to take along religious organisations such as the All India Muslim Personal Law Board, Utkal Christian Council and Apostolic Churches Alliance who have been against gay and had opposed the Delhi High Court verdict.

Whatever, the way forward may be, one thing is for sure – this is a debate that is not going to subside anytime soon.

(Source: IANS)