By Chapal Mehra:
On January 10th, Lovli and I walked the narrow by-lanes of Adarsh Nagar in West Delhi to one of the cruising spots where she, a transgender, was first raped by a group of middle-aged men. She is not a sex worker, she was not looking for gratification, and she was merely walking to the bus stand to catch a bus home. When she went to the police, they laughed at her story and threatened her with Section 377. She called other members of the transgender community who came to her rescue and took her to a private doctor who treated her. She now carries a small knife with her at all times – “In this country, we have to protect ourselves, nobody else will.”
Her words raise some important issues about the place of sexual minorities in India today. She isn’t the only one who feels oppressed under Section 377. There have been numerous reports of extortion and robberies where gay and bisexual men are regularly trapped either by the police or by thugs and threatened with exposure, public humiliation or prosecution until they pay up. The most distressing are stories like the young boy in Agra who tried to end his life when he was discovered in moments of intimacy with a male friend.
On February 2, 2016, close on the heels of Republic day, India’s Supreme Court will hear the curative petition on Section 377 – a colonial law that criminalizes “unnatural sex against the order of nature”. This petition will perhaps be the only opportunity for the Supreme Court to redeem itself, as it stands accused of incorrectly determining a case that pushed millions into forced criminality and reduced their fundamental and human rights to rubble.
In a broader context, the petition raises some fundamental questions about the values on which this Republic is founded – inclusiveness, equality, and freedom. What does it mean to be equal without the right to express desire? What is the right to life without the right to love?
As the court considers this petition, it must remember that in today’s India where to be different in any way may itself be an invite for institutionalized persecution, section 377 violates every single value of the Constitution. The Victorian law given to us by the British with the intent to destroy a diverse and inclusive cultural history of same-sex love does nothing but create further fault lines within an already fractured society thereby increasing oppression and persecution of sexual minorities.
While the law makes criminals out of all Indians, it is used to persecute and exploit some of its most vulnerable groups. By allowing this law to remain or denying to hear a petition against its own incorrect judgment the Court will be guilty of deliberate injustice. In a climate where fear reins among India’s minorities, any decision to dismiss or disregard this petition on procedure will be catastrophic. The Court will also be guilty of abetting the public health problem of HIV and other sexually transmitted diseases, which this law has a direct bearing on. The Court must hear the case, consider its merits but most importantly remember that any decision affects millions, many already deeply vulnerable and disempowered within homes, workplaces, communities and this republic.
In the end, the court must decide the moot question about Lovli and her position in the Indian Republic. A republic that wants to recognize her as a minority and give her reservation as a result of the NALSA judgment but deliberately disempowers her by not allowing her to express her sexual desire. A Republic that refuses to allow millions in positions like her the most basic human right that to love and express sexual desire. What is our role in this Republic? And does it serve any purpose to millions of us-this Lovli Republic?