377 & More

#Section377: Sridhar Rangayan’s ‘Breaking Free’

Sridhar Rangayan’s Breaking Free (2015) is a 90-minute documentary on the LGBTQI movement in India until the great heartbreak of the 2013 Supreme Court judgment. Much like the four-part SC judgments, it explores the link between sexuality and love, questions of identity that the LGBTQI peoples have faced, the systemic abuses from family members, society as well as law enforcement agencies, while celebrating the collective will of the people who kept the faith.

#Section377: Criminalising love is cruel and inhumane

Throughout the judgement, the Indian Supreme Court makes a distinction between ‘social’ or ‘majoritarian’ morality and ‘constitutional’ morality. Applying this distinction to the case at hand, the court rejects homophobia and popular sentiments that marginalise and discriminate against those who go against heteronormativity. This judgment has great resonance in Sri Lanka, where at present LGBTQI activists are agitating to strike Section 365 and 365a from the Penal Code, which is akin to Section 377 of IPC.

#Section377: Bigotry disguised as religious sentiments

One of the most fierce and vociferous opposition to LGBTQ+ rights has come from religious lobbies — be it the evangelical Christians in the USA running gay conversion therapy camps, or Baba Ramdev claiming that he can “cure” homosexuality through yoga, or the All India Muslim Personal Law Board. But the premise of human rights and liberty cannot be somebody else’s right to religion.

SC reading down Section 377 goes beyond law

In a judgment running into 493 pages, with four concurrent opinions from Chief Justice Dipak Mishra (who also wrote on behalf of Justice AM Khanwilkar) as well as Justices Rohinton Nariman, DY Chandrachud, and Indu Malhotra, the Supreme Court unequivocally upheld the constitutional rights of equality, non-discrimination, freedom of expression, privacy, autonomy, dignity, and health of LGBT persons guaranteed under Articles 14, 15, 19, and 21 of the Constitution. The arc of justice and freedom has finally come home, into the lives of LGBT persons, into the law, and hopefully will soon penetrate to their families, work spaces, public places, and in private domains.

Azadi for LGBTQI communities

The judgment holds that Section 377, to the extent it criminalises sexual acts between consenting adults in private is in violation of Articles 14 and 15 (equality and discrimination); Article 19 (Fundamnetal Freedoms) and Article 21 (privacy and dignity). Very importantly, the judgment notes that it is not the popular morality but constitutional morality which will would prevail. And constitutional morality includes the values enshrined in the Preamble.

#Section377 read down: The road ahead is long and arduous

Section 377, as observed by the Supreme Court in its judgment on September 6, 2018, is, “irrational, indefensible and arbitrary. The majoritarian views and popular morality cannot dictate constitutional rights.” While the outcome of this was a somewhat foregone conclusion, this forward-looking development, is bound to raise other significant issues.

#Section377: The long road to freedom

As Section 377 is read down today, we must not forget that ABVA filed the first writ petition to challenge the constitutional validity of Section 377 before Delhi High Court. The petition was dismissed in 1999 for non-prosecution just before Naz Foundation filed its petition in 2001.. On July 2, 2009 the Delhi High Court pronounced its historic judgment by declaring Section 377 unconstitutional, but it was overturned on December 11, 2013 by the Supreme Court on appeals filed by religious and cultural organisations. Today, the Supreme Court course-corrected again.

Transphobia against Shanavi violates Article 21

Adhering to the true spirit of the Constitution and the NALSA judgment, Shanavi should be entitled to self-determine her gender and should also be able to avail the benefits of the affirmative actions. The Union Ministry of Civil Aviation dismissing her letter on the grounds that it is only open for “women” is going against the value of the judgment.

Challenges beyond 377

While the Supreme Court will to decrimnalise consensual same-sex relationships is pretty clear to many, there are important issues to address, such as formulating anti-discrimination laws for private sector, making rape laws gender neutral to incorporate homosexual consensual sex acts, as well as move to recognize same-sex marriage.

Memorandum to Kejriwal on Alka Lamba's transphobic remarks

Alka Lamba has been criticised on social media for stereotyping the trans community by calling them "beech wale" who clap loudly ("thaali peetna"). Despite being called out on Twitter for her transphobic remarks, she has neither pulled down her tweet, nor has apologised for it.

WSS condemn transphobia

WSS statement points to the diverse forms of discrimination faced by the community, aggravated by the class and caste hierarchies. Members of transgender community have been historically deprived of their legitimate natural and constitutional rights.