ONE YEAR AFTER SCRAPPING OF SECTION 377 BY SUPREME COURT ONLY SMALL PROGRESS, LGBTQ COMMUNITY NEEDS MORE SUPPORT
It is often said that one year is a short time in the lifetime of a country, and even law, but one year could be a long tumultuous one in an individual’s life. On 6th September, 2018, the lesbian, gay, bisexual, transgender and queer (‘LGBTQ’) community changed forever, at least in law, if not in reality. On that day, the Supreme Court of India in Navtej Johar & Ors. V. Union of India [2018 (10) SCC 1] struck down Section 377, IPC, to the extent that it criminalized sexual acts between consenting adults, especially between homosexual persons, as unconstitutional. In doing so, the Supreme Court overturned its own appalling decision in Suresh Kumar Koushal v. Naz Foundation (2013), which upheld the validity of Section 377, thereby bringing to curtain one of the longest litigations in the history of India, starting from November, 2001 in Delhi High Court in Naz Foundation v. NCT of Delhi (2009), with its roots going even further in AIDS Bhedbhav Virodhi Andolan (‘ABVA’) v. Union of India (1994). For over 20 years, the entire LGBTQ community had rallied around to repeal the law, and to claim their fundamental rights to dignity, freedom and non-discrimination, while navigating their sexual identity in family, schools, colleges, workplaces, and in public spaces.As a queer lawyer working on LGBTQ rights for over a decade, I have been intimately involved in the legal struggle against Section 377, and experienced the ‘highs’ and ‘lows’ of the journey. Though not present in Court on 2nd July, 2009, when the landmark Naz Foundation judgment was delivered, I witnessed first hand the effect of Naz Foundation in the next four years. Thousands of queer persons came out to their families, friends, peers and colleagues, support groups for queer people rose exponentially, police harassment reduced, and most importantly, for the first time, queer persons felt that they were an equal part of a democratic country, with its constitutional promises of equality and dignity within their reach.
Then came the horror of December 11, 2013, the completely wrong and atrocious judgment of the Supreme Court in overruling Naz Foundation, and in upholding Section 377. The memory of that day is still imprinted in my mind, and the realization that we had ‘lost’; it was not just simply losing a case, it was losing as a lawyer, and a citizen who had faith in the Constitution of her country. It was also a sense of disbelief as to how could the Apex Court go so wrong, while completely failing to understand the import of Section 377, and its pernicious impact. The oft-repeated phrase ‘unapprehended felon’ to describe the effect of Section 377 fails to capture the sheer devastating impact the law has had on the rights and health of LGBT persons, with lives destroyed, bodies brutalized, and minds scarred forever. No act of decriminalization itself can compensate for the decades lost, bullying in childhood, loneliness and isolation suffered, and constant feeling of being considered ‘less than human’.
Almost five years later, when the Supreme Court finally struck down Section 377 on September 6, .2018, the overwhelming feeling amongst most of the lawyers and activists in the courtroom was that of sheer relief. What made the victory even sweeter was an emphatic and unequivocal articulation of fundamental rights of equality, non-discrimination, privacy, dignity, autonomy and health guaranteed under Articles 14, 15, 19(1), and 21 of the Constitution in the judgment by four judges, especially Justice D.Y. Chandrachud. The Court for the first time enunciated ideas of ‘sexual privacy’, ‘fluidities of sexual experience’, ‘public manifestation of sexual identity’, and ‘right to intimacy’, amongst others, which would go a long way in entrenching and protecting the constitutional rights of not just LGBTQ persons, but also inter-caste and inter-faith couples in India. The entire judgment was underscored by an emphasis on constitutional morality, and the transformative power of the Constitution, whereby in matters of “consensual intimacies, the Constitution adopts a simple principle: the state has no business to intrude into personal matters.”
One year is too short a time to assess any judgment, that too a path-breaking one like Navtej Johar, but not for those who are working on the ground with LGBTQ persons on a daily basis. In our experience in Delhi, we have seen a noticeable decrease in the cases of extortion/blackmail, especially social media like Grindr related, which had reached enormous proportions before. Prior to the judgment, we were getting almost 2-3 calls every week of gay men facing extortion/blackmail, but in the last 12 months, we have not receivedeven one case average in each month.
However, what we have seen is a huge spike in lesbian couples facing family/police violence. After the judgment, many lesbian couples, who earlier had no voice or hope that they could exercise their choice, have decided to speak out, and tell their families about their sexuality or same sex partner, or the families have found out themselves. During this period, we have handled almost 12-15 cases of lesbian couples either leaving their families or trans men leaving with their female partner. While in most cases, there was tremendous fear of police being let loose, or the families filing false cases, in some, we had to go to Courts to seek protection orders, or get the person released from family detention.
In one case, we had to go to Delhi High Court to get the married partner of trans man released from her parental home, and the High Court very reluctantly allowed the woman to stay with her partner, especially since she was married. In another case, the parents of one of the lesbian partners filed a police complaint in Noida, and when we went with the concerned woman to withdraw the complaint, the police officer threatened us with registering the case, if bribe was not paid. In a third case, a lesbian couple from Punjab and Delhi had to seek shelter in a women’s safe house in Delhi, facing severe family violence and harassment. While the High Court granted protection order to the couple easily, the Court failed to understand the intensity and degree of the family violence, and sought to tell the queer women to adjust with their families, and not to disappoint their parents.
Besides Delhi High Court, other High Courts, including Calcutta and Kerala, following the Supreme Court decision in Navtej, have protected the rights of lesbian couples or transgender couples to live with each other. The Calcutta High Court held that “fundamental right to life under Article 21 of the Constitution of India inheres within its wide amplitude an inherent right of self-determination with regard to one’s identity and freedom of choice with regard to sexual orientation or choice of partner..”
What all these cases indicate is that there is a huge churning that is happening in the queer community, with people wanting to come out, or wanting to live with their partners, but there are no systems in place to facilitate the exercise of those choices. There is a desperately need for shelter homes or safe houses, where queer couples can be housed for weeks, if not months, till they settle down or start their lives afresh. One needs more lawyers who can do both crisis cases and regular handholding of people needing legal services as well as risk assessment with the couples themselves, in terms of anticipating family backlash.
In so many cases, where people have moved houses, and relocated to another city, they have had to leave their colleges or employment, and needed to make a fresh start in a new city or area. Most of these people are from lower middle class or working class background, with limited social and financial capital, and making a fresh start is not easy, especially in a city like Delhi, including getting a rented house, without paying security/brokerage, finding employment, restarting education, etc.
In many cases, even when queer couples or individuals had managed to find a rented place, they had to undergo police verification, which involved that police from new jurisdiction would verify from the hometown police about their particulars, thereby often disclosing their location to the home town police, and in turn to their own family members, who would then swoop down immediately to harass the women.
The last one year also shown that movements are not fought in isolation, but on the basis of solidarity and alliances. In the same year, when the queer community got its freedom, the dalit and Muslim communities were facing mob lynching and violence almost on a daily basis, from a Hindutva establishment hellbent on destroying all democratic institutions and constitutional norms. In the run up to the one year of striking down of Section 377, the Central Government has unilaterally and undemocratically abrogated Article 370 of the Constitution, which was the basis of accession of the State of Jammu & Kashmir to the Indian Dominion in 1947, and has imposed a complete communication black out on 7 million people in Kashmir for over 35 days now.
The principles that existed in fighting against Section 377, i.e., fundamental right to dignity, autonomy, choice and self-determination, apply equally to other struggles, including in Kashmir. As Dr. Martin Luther King had famously said, “injustice anywhere is a threat to justice everywhere,” there is a dire need for coalescing and coalition of all progressive forces to fight against this onslaught of ‘New India’, and to preserve and protect the Constitution in its true letter and spirit.