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I am what I am; so, take me as I am
In 2009, the Delhi High Court, in a historic ruling struck down a 150-year-old, colonial provision that made consensual homosexual activities between consenting adults a punishable offense. However, this judgement was subsequently over ruled by the Supreme Court when an appeal was filed against this order of the High court.
A Writ Petition was filed in the Supreme Court of India for declaring S. 377of the Indian Penal Code,1860; unconstitutional insofar it criminalises consensual sexual acts between adults, whether homosexual or heterosexual. The basis of this petition was that the right to sexuality and sexual autonomy fell within the purview of Right to Life u/a 21 of the Constitution of India.
The petitioners included Navtej Singh Johar (a Sangeet Natak Akademi Awardee), Chef Ritu Dalmia and Hotelier Keshav Suri and others. The Union of India filed an affidavit in the SC, in which it did not oppose the Petitioners, but left the matter to the wisdom of the SC.
Finally, on the 6th of September, 2018, the SC in four separate but concurring judgements, declared S.377 of the IPC unconstitutional to the extent it punished homosexual intercourse. It held that S.377 violated the fundamental rights of the LGBTQ+ communities in India, who ought to be treated equally before the law, instead of facing discrimination. The 5-Judge bench observed that,“Constitutional Morality cannot be martyred at the altar of Social Morality[i].”
The counsel for the Petitioners referred to the NALSA judgement of 2014, wherein Transgenders were identified as the third gender, apart from males and females and were given some rights.
A beautifully worded judgement, quoting stalwarts like Shakespeare, Goethe and Oscar Wilde, this Historic Judgement was celebrated with tears of joy, victory marches, pride parades all around the Country.
Recently, this judgement completed two years of coming into effect. A question that still stands tall is that, ‘Have we as a society grown enough to let go of the rudimentary notion of Morality and be accepting and accommodating enough towards Homosexuality?’
Things have definitely changed for the better. The society, esp. the youth has become more sensitive and understanding to the idea of homosexuality, the members of the LGBTQ+ communities have become confident in accepting their relationships and embracing their sexuality.
This puts forth another strong question before us, i.e. “Is this enough?”No, it isn’t.
The government needs to do its bit in this regard. The people of the LGBTQ+ communities deserve basic civil rights as the rest of the citizens. Proper laws need to be made with regard to their union, separation, inheritance, adoption, etc. in order to give these relationships equal respect and recognition in the society. This becomes even more necessary, when only recently where a plea was filed before the Delhi High Court, seeking recognition of same sex couples to get married under the Hindu Marriage Act, 1955. Representing the Union of India, the Solicitor General observed that our culture and laws did not recognise same sex unions and unless several statutory provisions are altered (which is beyond the scope of the Judiciary’s powers), the relief sought for, couldn’t be granted.
Crimes in India recognise only male – female binary, i.e. only males and females can be victims. This becomes a need of the hour when we live in a society wherein a majority considers homosexuality a disease, which can be cured by indulging in heinous acts of corrective rapes (when homosexual individuals are forced to cohabit with the opposite sex in order to ‘cure’ them of homosexuality) and assaults of varying degrees and natures. Therefore,these laws need to be restructured and made inclusive for the LGBTQ+ communities. Workplaces need to be sensitised throughout, companies and organisations need to make the rules regarding prevention of sexual harassment at workplace and other policies gender neutral.
Surrogacy has been one of the means by which homosexual couples have realised their dreams of raising families of their own. But with commercial surrogacy being declared unlawful now, and the absence of any alternate safeguard for homosexual couples to be able to raise their own progeny, the community definitely stands at a loss. Seen as a progressive move of the government by many, fairly recently a Transgender Persons (Protection of Rights) Bill was cleared by the Lok Sabha, but it faced strong rejections and very stringent criticisms from the members of the Transgender Community for being regressive, archaic, superficial and largely ignorant of the community’s wants and needs.
Apart from discussing what the government should be doing, it is of equal importance to discuss what we as a society should do. There has been a lot of hostility towards the members of the LGBTQ+ communities since long. They’ve been subject to discrimination and violence, which is may be religious or state sponsored. As of today, Homosexuality still remains illegal in almost 74 countries of the world. It is still regarded as a western concept that goes against the principles of nature, science and rationality. This feeling of hatred against these communities is identified as Homophobia. Now, while this feeling may be internalized or social, it becomes a severe hinderance in moving towards a truly liberal society. All the hate crimes against this community, like Corrective rapes, honour killings, etc.emanate from this feeling of homophobia. Unless it is done away with, the stigma attached to homosexuality shall remain deep rooted. Education and Awareness are the only tools that will help in combating this. What needs to be understood and taught is the fact that, it is not homosexuality in itself that is immoral and condemnable; it is the archaic belief that normalises discrimination on the basis of one’s sexual orientation. It is the notion of heterosexual bias that needs to be done away with. Associating Preventive strategies in schools against homophobia and the related prejudice and bullying need to be adopted and applied.
This judgement, although a respite for many is still the first step in a long, tumultuous journey ahead. While we as a society may not be ready today to accept the concept of homosexuality with wide open arms, we surely are getting there slowly. We see contrasting realities everyday around us; on one hand we see steps being taken towards building a free and liberal society, while on the other, we see the orthodox mentality of some, refusing to even recognise the existence of such a notion; in the words of the renowned English poet, Robert Frost, we have ‘miles to go before we sleep’.
History owes an apology to these people and their families, for the ignominy and ostracism they have suffered through centuries. Homosexuality and Bisexuality are natural variants of human sexuality and not the determining grounds of the moral fibre of any individual.