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The Irreparable Harm That Section 377 Can REALLY Have On India’s LGBTQI Community

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By Rovel Sequeira:

Franz Kafka’s early 20th century novel The Trial manifests certain eerie similarities with the plight of LGBT citizens living in modern India. As in the world of The Trial, whose protagonists live in constant fear of being imprisoned in a State which presumes their guilt before accusing them of any particular crime and even before they commit any, India’s LGBT individuals are perennially in fear of being apprehended, and of being branded as criminals. The key difference is that in ‘The Trial’, no one has any idea about the law the protagonist Joseph K has supposedly transgressed against. Here, in 21st century India, we know exactly which law has become a nightmare reality in India’s LGBT population’s everyday lives, a law which constantly circumscribes its movements, invades its privacy and places it under constant surveillance — Section 377 of the IPC.

377

In the aftermath of the Supreme Court’s verdict on the 377 case, many academics and members of civil society commented on the retrogressive nature of the judgement, reserving particular criticism for its archaic and repressive wording. One of the key arguments cited in the verdict was that the fear of the misuse of the law could not become grounds for its being read down. In any case, the Court was apparently not convinced about the discrimination caused by the law against the country’s LGBT population, despite specific instances of abuse being cited to it. Taking a look at specific instances of ‘use’ and ‘misuse’ of the law, we come to see that there is no difference between these two terms as far as Section 377 is concerned.

Indeed, rather ironically, a month prior to the Supreme Court’s reading out of the judgment in December 2013, 13 men in Hassan, Karnataka, were accused of having violated section 377. 8 out of those 13 were picked up from public places on the alleged accusation of public sex but were charged with Section 377 (carrying a sentence of 10 years to life imprisonment) instead of being charged with public nuisance (carrying a sentence of 3 months). Many of these 13 were arrested in front of their families and neighbours causing them irrevocable damage in terms of their reputation in society, given the stigma attached to sexual relations between men in India and particularly in non-metropolitan areas.

In the same context of abuse of the law, one of the arguments of the plaintiffs while drafting a plea for the review of the Supreme Court’s judgment was that, since the Delhi High Court’s judgment reading down Section 377 in 2009, a number of individuals had come out to their families and to society as LGBTQ, perceiving a possibly more favourable environment for tolerance, if not acceptance. The Supreme Court’s judgement places these individuals in a particularly dangerous position, rebranding them as criminals after they have made themselves visible, thereby making them easy targets for emotional and physical abuse and discrimination. Tragically, a month after the judgment, this is exactly what has happened. In Gujarat, a man who had participated in the Gujarat gay pride  march quite openly was later identified by two cops posted on security duty during the march and later and was brutally raped by them. (Or rather, he was sexually assaulted, since rape laws in India still don’t consider men as possible victims of rape). The case bears sinister resemblance to the story that plays out in Onir’s National Award-winning film- I Am– where a gay man living in pre-Delhi High Court Judgment times is hustled, extorted, and sexually assaulted by a policeman even before he has violated Section 377. These instances should make it quite clear, that the queer community in India is perpetually vulnerable to the abuse of this law by the police.

It is in this light that the Supreme Court’s reading of Section 377 as constitutionally valid is especially painful, given that after it had failed to protect Indian democracy during the Emergency, it had declared that it would, henceforth, protect the weak and the marginalized. Its refusal to read down the law for what it considers a ‘minuscule’ population, therefore, is deeply inimical to the very spirit of democracy, which is far more than a majority-rule framework and operates on the principle of constitutional morality rather than social morality. Besides, the judgement, while theoretically also criminalizing ‘straight’ non-peno-vaginal sex, fails to consider that the LGBT population seems ‘minuscule’ only because it is a scarcely visible subaltern group, one in constant danger and therefore, most in need of safeguards. While there have been few cases of actual prosecution of people under Section 377 (about 200 in its 150-year history), there are countless instances in which it is repeatedly used to blackmail, extort and abuse LGBT individuals, as in those already enumerated above. The incident of the blatant violation of privacy, and discrimination against Aligarh Muslim University professor Ramachandra Siras (a sting operation replete with cameras was installed in his house to film him having consensual sex with a rickshaw-puller) in 2010, leading to his sacking and eventual suicide, is another case in point. For a further list of cases registered under Section 377, click here. What is particularly startling and frightening is that Section 377 is also being used to hamper with efforts to control the spread of HIV in India, as in a 2001 case in Lucknow where healthcare workers were arrested under it for distributing condoms.

Ironically, pre-British India was a lot more inclusive of same-sex relations and even ancient Hindu mythology, in the Khajuraho temple sculptures for instance, or in the Ardhanarishwara myth, accepts homosexual expressions of sexuality as a natural variant. Reading down Section 377, therefore, would actually be in keeping with Indian religious and cultural heritage, rather than an import from the West, as the religious orthodoxy in India would have us believe.

Meanwhile, even in other countries with a history of British colonial rule, and therefore, with similar histories of criminalizing male-male sexual relations, Section 377 and its equivalents are blatantly misused to this day. In Malaysia, for instance, where the law is still in place, the leader of the opposition party, Anwar Ibrahim, was accused by the ruling party of having had ‘’unnatural sex’’ with one of his top aides. Ibrahim was later acquitted by the High Court on the grounds that the evidence was possibly tampered with by the investigating agencies. Similar laws are being used on a daily basis to extort, harass and physically abuse the LGBT communities in other erstwhile British colonies including Pakistan, Bangladesh, Bhutan, Singapore, and a host of African and Caribbean countries. Getting over a colonial hangover is not as easy as getting rid of one’s imperial rulers. Getting rid of Section 377 would, therefore, be an essential step in true decolonization.

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An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

Saurabh has been associated with YKA as a user and has consistently been writing on the issue MHM and its intersectionality with other issues in the society. Now as an MHM Fellow with YKA, he’s launched the Right to Period campaign, which aims to ensure proper execution of MHM guidelines in Delhi’s schools.

The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

Read more about his campaign.

Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

Read more about her campaign.

MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

With YKA MHM Fellow Vineet, Sabna launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society. As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Read more about her campaign. 

A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Find out more about the campaign here.

A native of Bhagalpur district – Bihar, Shalini Jha believes in equal rights for all genders and wants to work for a gender-equal and just society. In the past she’s had a year-long association as a community leader with Haiyya: Organise for Action’s Health Over Stigma campaign. She’s pursuing a Master’s in Literature with Ambedkar University, Delhi and as an MHM Fellow with YKA, recently launched ‘Project अल्हड़ (Alharh)’.

She says, “Bihar is ranked the lowest in India’s SDG Index 2019 for India. Hygienic and comfortable menstruation is a basic human right and sustainable development cannot be ensured if menstruators are deprived of their basic rights.” Project अल्हड़ (Alharh) aims to create a robust sensitised community in Bhagalpur to collectively spread awareness, break the taboo, debunk myths and initiate fearless conversations around menstruation. The campaign aims to reach at least 6000 adolescent girls from government and private schools in Baghalpur district in 2020.

Read more about the campaign here.

A psychologist and co-founder of a mental health NGO called Customize Cognition, Ritika forayed into the space of menstrual health and hygiene, sexual and reproductive healthcare and rights and gender equality as an MHM Fellow with YKA. She says, “The experience of working on MHM/SRHR and gender equality has been an enriching and eye-opening experience. I have learned what’s beneath the surface of the issue, be it awareness, lack of resources or disregard for trans men, who also menstruate.”

The Transmen-ses campaign aims to tackle the issue of silence and disregard for trans men’s menstruation needs, by mobilising gender sensitive health professionals and gender neutral restrooms in Lucknow.

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A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

A Gender Rights Activist working with the tribal and marginalized communities in india, Srilekha is a PhD scholar working on understanding body and sexuality among tribal girls, to fill the gaps in research around indigenous women and their stories. Srilekha has worked extensively at the grassroots level with community based organisations, through several advocacy initiatives around Gender, Mental Health, Menstrual Hygiene and Sexual and Reproductive Health Rights (SRHR) for the indigenous in Jharkhand, over the last 6 years.

Srilekha has also contributed to sustainable livelihood projects and legal aid programs for survivors of sex trafficking. She has been conducting research based programs on maternal health, mental health, gender based violence, sex and sexuality. Her interest lies in conducting workshops for young people on life skills, feminism, gender and sexuality, trauma, resilience and interpersonal relationships.

A Guwahati-based college student pursuing her Masters in Tata Institute of Social Sciences, Bidisha started the #BleedwithDignity campaign on the technology platform Change.org, demanding that the Government of Assam install
biodegradable sanitary pad vending machines in all government schools across the state. Her petition on Change.org has already gathered support from over 90000 people and continues to grow.

Bidisha was selected in Change.org’s flagship program ‘She Creates Change’ having run successful online advocacy
campaigns, which were widely recognised. Through the #BleedwithDignity campaign; she organised and celebrated World Menstrual Hygiene Day, 2019 in Guwahati, Assam by hosting a wall mural by collaborating with local organisations. The initiative was widely covered by national and local media, and the mural was later inaugurated by the event’s chief guest Commissioner of Guwahati Municipal Corporation (GMC) Debeswar Malakar, IAS.

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